Article by Lamb McErlane Attorney, Lauren M. Law.

One of the most frequently asked questions I receive from employees is whether a Performance Improvement Plan (“PIP”) means they are going to be fired. Unfortunately, there is no universal answer. Sometimes a PIP presents a genuine opportunity for an employee to improve. Other times, it is the beginning of the termination process.

I have represented employees who successfully completed a PIP and remained with their employer for years. I have also represented employees who were terminated shortly after receiving one. The PIP rarely tells the full story; the surrounding circumstances often reveal much more.

At Lamb McErlane PC, we help employees and employers navigate difficult workplace issues before they develop into larger disputes. We combine practical employment advice with litigation experience, allowing us to evaluate not only what is happening now, but also how the decisions being made may be viewed if the matter later results in a legal claim.

Do Not Panic

If you have been placed on a PIP, resist the urge to respond immediately out of fear or frustration. A PIP is an important document, but it is only one part of a much larger picture. Take a step back and evaluate the situation objectively before deciding what to do next.

Consider what was happening at work before the PIP was issued. Were there prior discussions about your performance? Did you receive positive evaluations or praise for the same work that is now being criticized? Did a new supervisor recently take over? Understanding the events leading up to the PIP can help you determine whether the concerns are new, longstanding, or inconsistent with your actual performance history.

Read the PIP Carefully

 Start by reading the PIP from beginning to end, twice. Does it identify specific performance concerns, or does it rely on broad statements such as “communication issues” or “lack of professionalism”? Does it explain what improvement is expected, how your progress will be measured, and who will evaluate your performance?

You should also consider whether the expectations are realistic within the time provided. If anything is unclear, ask for clarification in a professional manner. You should understand exactly what your employer expects before you are evaluated against those expectations.

Preserve Relevant Documents

Keep copies of documents relating to your employment, including the PIP, your job description, prior performance evaluations, and emails discussing your work. You should also preserve documents reflecting praise, successful projects, completed goals, or other information that may provide a more complete picture of your performance.

If you meet with your supervisor or a representative from Human Resources, make notes afterward while the conversation is still fresh in your mind. Include the date, who participated, and the substance of the discussion. If a dispute later arises, documents and notes created at the time are often more persuasive than someone’s recollection months later.

Take the PIP Seriously

 Even if you disagree with the criticism, take the PIP seriously. Make a good-faith effort to meet the stated expectations, communicate professionally, and document your progress. In many cases, this is the best approach regardless of whether you ultimately stay with the company.

I often advise clients not to send an emotional response or refuse to participate in the process. Those reactions can create new problems. You can disagree with the PIP while still doing your job and responding professionally.

Consider the Timing

 Timing can be important. Were you placed on a PIP shortly after requesting FMLA leave, asking for a disability accommodation, reporting discrimination or harassment, raising concerns about unpaid wages, or engaging in other legally protected activity?

Those facts do not automatically mean that the PIP is unlawful, but they should not be ignored. A sudden change in how your performance is evaluated after protected activity may warrant closer review, particularly if the concerns were never raised before or are inconsistent with your employment history.

Look Beyond Whether the PIP Is Fair

 Many employees focus on whether the PIP is fair. From a legal standpoint, that usually is not the first question. Employers are generally permitted to make business decisions that employees may consider unfair, and disagreement with a performance assessment does not necessarily give rise to a viable legal claim.

The more important questions are often whether the employer is applying its standards consistently, whether the stated concerns are supported by the record, and whether something other than performance may be driving the decision. It may also be relevant whether other employees were treated differently under similar circumstances and whether the employer’s explanation has remained consistent.

Decide Whether to Respond in Writing

 Depending on the circumstances, it may make sense to prepare a written response to the PIP. A thoughtful response can correct factual inaccuracies, provide important context, identify unclear expectations, and create a record of concerns that may become relevant later.

However, a written rebuttal is not appropriate in every situation. A lengthy or overly aggressive response can detract from the strongest points or make it more difficult to preserve a productive working relationship. The decision to respond, and what to include, should depend on the specific facts and your objectives.

How I Can Help

 When an employee contacts me after receiving a PIP, the first step is usually to evaluate the circumstances before any major decisions are made. That may include reviewing the PIP and other employment records, discussing the employee’s performance history, evaluating whether protected activity may have played a role, and identifying practical options for moving forward.

Depending on the circumstances, I can help prepare a written response for the employee to submit themselves, communicate directly with the employer, try to negotiate a resolution, or assess potential legal discrimination claims. Not every PIP results in termination, and not every termination supports a viable claim. Seeking advice early can give employees more options and help them avoid decisions that may affect their rights.

If you have questions about a PIP or other employment-related disputes, contact Lamb McErlane today to schedule a consultation and discuss how we may be able to help protect your interests. If you have any questions or if we may be of further assistance regarding workplace matters contact Lauren M. Law directly.

*This alert is for educational purposes only and is not intended to be legal advice.

 Lauren M. Law is a Senior Associate at Lamb McErlane. She focuses her practice on employment law, as well as complex civil and business litigation. Lauren can be reached by email at llaw@lambmcerlane.com or by phone at 267-388-2886.