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The Performance Improvement Plan

I often get calls from employees saying that they have been placed on a Performance Improvement Plan, commonly referred to as a “PIP”. Many times, the employee feels that being placed on the plan is unjustified and therefore is indignant that they are being unfairly singled out by their manager. The employee often expresses concern that the plan means that they have one step out the door and they ask me what can legally be done to help salvage their job.

In response, I typically begin by explaining that employees in Illinois are, with few exceptions, “employees-at-will”, meaning that their employment can be terminated at any time for any reason – provided it is not an unlawful discriminatory reason. This means that an employer does not need to place an employee on a PIP prior to firing them. There are some companies which have voluntarily enacted a policy of progressive discipline in which performance deficiencies or certain types of infractions lead to a warning prior to termination, but this is more the exception than the rule. In fact, when I counsel employers in developing their employment policies, I discourage setting up any expectation of progressive discipline because it can infer that it supercedes what would otherwise be the default employee-at-will status, thereby making it necessary for the employer to jump through procedural hoops prior to firing an employee.

Employees are often surprised to learn that they have little, if any, job security. That been said, this is what I most often advise employees when placed on a PIP:

  1. Swallow Your Pride. It is never pleasant to be told you are not meeting your job’s performance expectations and the natural response is to become defensive. However, becoming defensive with an employer who holds all the cards in terms of your continued employment is not an effective strategy. In fact, it will likely hasten your departure. Try and set aside ego and emotions long enough to objectively review the PIP to ascertain what legitimate issues the employer has with your performance and what efforts you can make to meet performance expectations.
  2. Accept Responsibility. There are almost always at least some legitimate performance deficiencies articulated in a PIP. You may not agree with all of the issues identified, but the employer has the right to request that your performance be to their liking. After you have had the opportunity to digest the content of the PIP, you should sit down with your manager or supervisor to review the PIP and ask for clarification as to anything you find to be unclear. I also recommend that you muster the strength to earnestly declare to your manager or supervisor that you are going to put forth your best efforts to improve your performance so that it meets your employer’s expectations.
  3. Have Defined Performance Goals. A well written PIP should set forth specific benchmarks which need to be met to meet performance expectations. These benchmarks of performance should be reasonable, attainable and measurable. If the PIP does not set forth such benchmarks, you need to ask your manager or supervisor to write down specific action items you need to perform, in in some cases refrain from doing, to show improvement. You should also ask for a specific date in the future by which your improvement will be evaluated.
  4. Be Proactive in Following Up. Employees should schedule a follow up meeting with their manager after several weeks to discuss their progress in addressing the performance issues identified in their PIP. Consider a PIP like a report card in school. The PIP states that you are not getting a good grade, and in fact, you may be failing. A well drafted PIP should tell you specifically what you need to do to improve your grade. Once you know what you are expected to do, it is up to you to put in the required effort to do it. Using school as an analogy, a student who is getting a C who wishes to improve his or her grade is going to have to try harder. If a student puts forth the necessary effort and confirms with the teacher that there is improvement, the teacher would have a hard time justifying not giving the student a better grade to reflect that effort and improvement. The same thing holds true in the workplace. The employee should take it upon himself to follow up at regular intervals with their manager to see whether he is making progress toward improvement. If the answer is no, you should ask specifically what more can be done and take your list of specific expectations and check them off one by one to make sure you are performing them. After several weeks, you should follow up to confirm with your manager that your efforts are being recognized. By being proactive in following up with the manager, you create a situation in which your manager has a vested interest in seeing you succeed rather than fail.
  5. When a PIP is really not a PIP. There are times when employers use the PIP not for its intended purpose of improving employee performance, but rather as a pretext to justify a planned termination. If a PIP has no basis in reality, it is often a red flag that it is being used as a pretext to cover up a potentially wrongful termination. Although employers can terminate employees without any reason due to the “employee-at-will” doctrine, they often fear that the employee will later claim that they were terminated for a discriminatory reason. Even in cases where the employee may not have an actionable claim, an employer may choose to create a paper trail to bolster a defense to a potential claim of wrongful discharge. In such instances, the PIP may be intended as a precursor to a termination and therefore no amount of effort on the employee’s part will change the ultimate outcome. This doesn’t mean that the future termination is necessarily unlawful, but if there are indications of discriminatory conduct in connection with an unjustified PIP, it would be wise for the employee to consult with an employment attorney to evaluate the circumstances to determine if there is a cause of action.

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