You’ve been at your company for a number of years and received good reviews, even a couple of raises. But recently, something has not been working out with the new management, which is strange because you haven’t changed. You show up on time, do your work, and do it well.
One day you make a mistake. You own it and don’t make excuses. Everyone makes a mistake now and then. But it’s like they were waiting for it. The next day you get called into a meeting and a stone-faced HR rep slides a three-page document in front of you. It’s titled “Performance Improvement Plan.” The dreaded PIP. She drones on for a bit, which you can barely pay attention to because you are in shock. As you take a look, you realize the document inaccurately describes your performance. It also gives this long list of vague goals. There is a paragraph at the end that essentially says, “If you can’t meet these impossible goals, we will fire you.” The HR rep asks you to sign it.
You see this is for what it is – the first step in an effort to fire you. So, what should you do?
Before we get to tactics, you should understand that you cannot successfully sue your employer for a bogus PIP. A short lesson on the law: To win a lawsuit against your employer, your employer must have taken what is known as “an adverse employment action,” as seen in Reynolds v. Department of the Army. Getting fired clearly meets that standard. Demotions, transfers and other actions of wrongful termination by your employer can also be the basis for a suit. Not so for PIP. Strange, but it’s the law.
Okay, you can’t sue. What can you do?
Should you stay or should you go?
First, you have a decision to make. Do you try to make this work? Or do you see this as the beginning of the end for your job? Perhaps I’ve been doing this work too long, or just tend to see the bad cases. But in my view, private sector companies often don’t expect an employee to recover from a PIP. No matter what they say, you are marked for elimination; maybe not tomorrow, or next month, but it’s coming. It tends to be a bit different for government employees, who have a better chance of surviving a PIP and keeping their jobs.
If you want to try to make it work, then your strategy is easy. Muster up a smile and some enthusiasm and tell the HR rep that, while you disagree with some of the statements in the PIP, you want to succeed at your job and will meet the PIP requirements. Sign the document and do your best to meet the goals of the PIP. Be pro-active with this. If you are unclear about some of the requirements, ask for clarification. Document all of your efforts to comply with the elements of the PIP. Dot your i’s and cross your t’s. Hopefully it goes well and the PIP becomes just a bump in the road.
One word of caution: understand that a PIP, as you might imagine, can be evidence of discrimination. For instance, you are the only woman in the company and you are being cited in the PIP for “infractions” that men routinely commit without reprimand. If that is the case, you have the option to raise that issue. However, my experience is that, if you do that, you’re cooked. That’s illegal, and if you are fired for raising issues of discrimination, this can be the basis for a suit. But I’m assuming now that you want to keep your job. I’m not saying you should let it slide. I would just put someone who reports discrimination as being put in the category of preparing for an exit from the company. Deciding not to report it in favor of sticking it out at the company can mean that you lose your right to take action in the future. If this is happening to you – you think the PIP is the result of discrimination – I would recommend taking an hour to talk to a lawyer. This does not necessarily mean “lawyer up.” You don’t have to hire him or her. But he or she can help you assess and think through your options.
Let’s suppose that you think the writing is on the wall. It’s time to go. Your objective now is to negotiate the best severance agreement that you can get. Here some steps that you should take:
Sign the PIP.
Your company wants you gone. Don’t make that easy for them by refusing to participate in with the PIP. Many people who come to see us worry that if they sign they are admitting to deficient performance. Usually, this is not a concern because most PIPs on the signature line note that the employee is only acknowledging receipt of the PIP, not that he or she agrees with the content. So, by signing it, you are only attesting, “Yeah, I received this and HR reviewed it with me.” However, if you are concerned, you can sign the PIP with a notation like, “I have received and understand this PIP, but disagree with the characterization of my employment.” Even the experts indicate that while this isn’t necessary, it might help you feel better about signing.
Comply with the PIP.
While you are trying to negotiate a severance, do what they ask you to do. I get it. The weekly meeting with your boss (or whatever it is they are trying to get you to do) is bogus. Do it anyway. Remember, it may very likely be illegal for your company to fire you for failing to comply with the PIP. So, put on the performance of your life.
Talk to a lawyer.
Yeah, I know. You expect this advice coming from a lawyer. But this is what I’d tell a family member. You are entering some choppy waters. Your ability to negotiate a path forward will, in large part, depend on having a realistic understanding of your leverage. The best way to do this is to spend an hour talking to a lawyer who understands employment law. According to Forbes Contributor, Deborah L. Jacobs, you should have any severance package reviewed carefully by an experienced lawyer. It also pays to know whether or not you have a legal case. If you don’t find out for sure, you may always wonder. Eventually, it might be too late. Submit your case information here for a no cost online review by one of our Spiggle Law Firm attorneys.
If you think the PIP is discriminatory or in retaliation for trying to do the right thing, tell your boss or HR department in writing. Will this cause some fireworks? Maybe. But the benefit is that you may buy yourself some anti-retaliation protection under federal law. The wrongdoing does not have to be related to your PIP. It need not necessarily involve wrongdoing against you personally. Perhaps something happened a few months before the PIP that you thought was wrong but didn’t think worth risking your job to report. Well, it’s time now to come forward. Will the company say, “This is just sour grapes!”? It might. But it doesn’t matter under the law. In some cases, if you report wrongdoing you are entitled to extra protection under federal law. At this point, you don’t have much to lose.