Should I Sign My Performance Improvement Plan?Employment Agreements
Have a question about your potential legal case? Our Legal Leverage program has you covered!
Are you trying to decide whether you should sign the (bogus) performance improvement plan (PIP) that your boss or human resources just shoved in your face (figuratively)?
It’s an important question because PIPs, by definition, include critical descriptions of your performance. These descriptions are the same ones that management could use to justify firing you.
What Is a PIP?
To make sure that we are on the same page, let’s take a quick detour and define what a PIP is. A PIP is a document, usually generated by human resources, that purports to describe specific instances of poor work performance while providing steps an employee can take to improve his or her performance.
If you read How to Establish a Performance Improvement Plan, published by the Society for Human Resource Management, you would think that a PIP is a kumbaya moment where HR works collaboratively with an employee who has performance problems that, according to the article, might be the company’s fault, not the employee’s.
No, really, it’s not you; it’s me.
I’m sure that sometimes a PIP turns out to be something other than a death knell for your job. And if you’re in a government position, you may very well survive your PIP.
But of the cases that I see, especially for private sector jobs, a PIP is a way for the employer to attempt to avoid liability for what’s coming in a couple of months: termination.
You Should Sign the PIP
The short answer to that question is yes, you should sign your PIP. To make sure that management cannot use these characterizations against you later, write below your signature something like “I sign only to acknowledge receipt of this document.”
But what if the PIP is unfair, vague, or clearly in retaliation for your speaking out against wrongful behavior within the organization? The answer is still the same: you should sign it.
Painful, I know.
Now, let’s talk about the three reasons why you should sign your PIP.
- A PIP is not an “adverse employment action.”
- You can get fired for not signing it.
- You need to become the model employee, even if you have grounds to sue.
A Performance Improvement Plan Is Not an “Adverse Employment Action”
For an employee to be able to sue an employer, the employer must have taken an “adverse employment action.” There is no uniform definition of what constitutes an adverse employment action. It certainly includes refusal to hire, termination, and demotion. The EEOC discusses the term in Facts About Retaliation.
As for a PIP, most courts to consider the matter have determined that a PIP alone is not an adverse action.
However, note that a PIP accompanied by an adverse employment action is something that you can take before a judge. If your employer says, “Here is your PIP and we are denying you that promotion you applied for,” then you have a case.
You Can Be Fired for Refusal to Sign
To add insult to injury, if you are facing a bogus PIP, it’s likely that your employer can skirt liability if it fires you for refusing to sign the plan.
The Society for Human Resource Management notes in Employee Lawfully Fired for Refusing to Sign a PIP (sub. req.) that a federal court ruled that a company was perfectly within its rights to terminate the employment of a person who refused to sign a PIP.
Being the model employee is the best protection for surviving a PIP, even if you plan to sue.
Suing your employer can be an uphill battle, as courts more often side with employers. To maximize your chances of winning, you need to be squeaky clean.
As an attorney, I much prefer to say to a judge, “Your honor, ABC employer tried to punish my client by putting her on a PIP. And she complied with every objective in that PIP, even though her performance was never in question. ABC employer still fired her.”
Now, this does not mean that you have to agree with how your boss characterizes your performance in the PIP. I often advise clients to write a letter (or e-mail) to HR explaining how the PIP is misguided. But the letter—and this is key—must also say something like, “Though I disagree with the stated reasons for the PIP, I will nevertheless fully comply with the plan objectives.”
Summing It All Up
Getting unfairly slapped with a PIP can be demoralizing. But refusing to play along may give your employer a legal reason to fire you.
Employment law can be confusing. Your HR department can talk to the company lawyer for good advice. But employees need good advice too. That’s why I wrote the guide below. Protect yourself.
Download it, for free, now by clicking the link below:
The Spiggle Law Firm provides solid advice to high-level executives facing problems at work. And, when necessary, we punish employers that mistreat them. We have a soft spot for employees targeted simply because they have child or elder care responsibilities.