What is a Performance Improvement Plan?
A Performance Improvement Plan (PIP) is a formal written document used by employers to address and document performance concerns with an employee. It serves to outline specific problems, issues and deficiencies in the employee’s work performance, while also establishing clear, measurable expectations for improvement within a specified timeframe. A PIP is not just a list of criticisms; it is meant to provide a structured opportunity for the employee to meet the employer’s performance standards while also providing the employee a warning of the consequences if the employee fails to successfully complete the PIP. PIPs typically include work deadlines, specific work goals, and other work-related steps the employee must take to address the areas of concern identified by the employer in the PIP.
Although there is no specific law in California that directly governs a PIP or limits or restricts an employer’s use of a PIP in any particular circumstance, that does not mean an employer can use a PIP for an illegitimate or unlawful reason, such as discrimination, harassment or retaliation. Generally speaking, an employer must have a “legitimate business reason” to implement a PIP; poor work performance, poor attendance, or similar misconduct at work is almost always the legitimate business reason asserted by employers as the basis for a PIP.
It’s essential for employees to understand that the primary purpose of a PIP is not to “help” the employee. Instead, the primary purpose of the PIP is to provide clear documentation for the employer’s anticipated termination decision and to “paper the file” by creating legitimate, contemporaneous documentation of poor job performance that warrants termination of employment. Although all employment in California generally is “at-will employment,” meaning that employers may terminate employees without “good cause,” employers often use a PIP to demonstrate that the employer in fact did have good cause for the termination decision, and even offered the employee an opportunity to correct performance issues, which strengthens the employer’s defense in any subsequent lawsuit that might arise from an involuntary termination. Matt explains it this way: “When I was a defense lawyer representing large and small corporations throughout California, the advice we gave employers over and over again was this: “Make sure all of your employees are at-will employees, but always act like you are not an at-will employer.” In other words, most employers will not terminate an employee for “no cause” even though doing so is perfectly legal under California law. Most employers will ensure the employer has a solid “legitimate business reason” (i.e. good cause) for each employee termination. Implementing a PIP for a poor performing employee is one of the most effective methods to demonstrate the employer’s business reason for an employee termination.
If you’re a California employee facing a PIP, don’t panic. Although being on a PIP is a serious matter that requires your most diligent and professional response, understanding the dynamics of the PIP that Matt Ruggles sets out below can help you successfully navigate yourself through the process.
What is the Purpose of a PIP from the Employer’s Perspective?
From an employer’s perspective, a Performance Improvement Plan (PIP) serves multiple purposes beyond simply addressing performance concerns. At its core, the PIP is designed to provide the employer with a documented reason for any subsequent adverse employment action, such as a termination of employment, demotion, or reduction in pay. Simply put, the employer issues a PIP to an employee so that the employer has documented evidence that it made a legitimate business reason for the anticipated adverse employment action, which tends to make any subsequent allegation of discrimination or retaliation by the terminated employee look baseless.
Employers typically use PIPs as part of their overall performance management strategy. By documenting these efforts, employers demonstrate that they are acting in good faith by giving the employee a fair chance to correct performance issues rather than resorting immediately to termination. This can be particularly important in states like California, where employment laws offer significant protections to employees. A well-structured PIP can show that the employer has made reasonable efforts to support the employee before taking further action, such as demotion or termination.
My Employer Insists Everyone is an “At-Will Employee.” If True, Why Not Just Terminate a Poor Performing Employee Rather Than Go Through the Hassle of a PIP?
Employers often choose to use a PIP rather than immediately terminating a poor-performing employee to give the employee a formal opportunity to correct their performance. While at-will employment allows employers to terminate employees without cause, a PIP shows that the employer is acting in good faith by providing support and clear expectations for improvement. As noted above, a PIP also provides the employer with documented evidence of poor work performance by the employee if the employee is terminated. This approach can help protect the employer from potential legal claims, such as wrongful termination or retaliation, by documenting efforts to address performance issues before resorting to termination.
Used successfully, PIPs may also allow employers to avoid the disruption and cost of immediately replacing an employee. If the employee successfully improves, the company retains a trained worker, and the workplace remains stable. Employers also use PIPs to ensure consistency and fairness across the workforce, showing that they treat employees equally and give them opportunities to succeed rather than resorting to termination of unexpected employment.
What to Do if You Know a Performance Improvement Plan is Imminent or About to Be Issued
If you know you are about to be put on a PIP at work, it’s important to take proactive steps to prepare. First, review your recent job performance evaluations or annual reviews, if available. If you do not have copies of your performance reviews, ask your HR representative for an opportunity to review your own personnel file. All employees have the right to review their personnel file, and employers are obligated to give employees the opportunity to review the employee’s own personnel file, including making a copy of the file. Take note of any negative comments or low scores in your performance reviews, including any comments about areas of improvement, etc.
Gather any documentation that demonstrates your accomplishments or reasons why performance issues may have occurred, such as emails, project updates, or communications with supervisors. This preparation will help you understand where improvement is needed and defend your performance if necessary.
Next, mentally prepare for the upcoming conversation. Approach the situation professionally, acknowledging that a PIP is meant to offer you a structured opportunity to improve. Be ready to listen, ask clarifying questions, take notes, and show a willingness to address the issues raised. By taking these steps, you will be better positioned to navigate the PIP process with a focus on improvement and successful resolution.
How to Respond During the Meeting with Management in Which You Are Informed of the PIP
When you are informed of a Performance Improvement Plan (PIP) during a meeting with management and/or HR, it’s important to remain calm, professional, and receptive. Start by carefully listening to the feedback being provided. Ensure that you fully understand the specific performance issues and the expectations outlined in the PIP. Ask clarifying questions if anything is unclear, including the goals, deadlines, and any support that will be available to help you meet the expectations. It’s important to acknowledge to management and/or HR that you are concerned about the message being conveyed to you. Matt suggests that employees express that acknowledgment verbally by saying words like: “I understand your concerns and I am committed to addressing the issues you’ve identified. I want to improve so I can continue working here. I love my job.” Don’t be flippant or tell them to “take this job and shove it!” You are better off with a job and on a PIP than terminated and unemployed, and it is generally easier to find a job if are presently employed compared to if you are terminated. Matt explains it this way: “Act like you care, even if you don’t.”
It’s also a good idea to take notes during the meeting so you can refer back to the details later. Avoid becoming defensive, even if you disagree with some of the points raised. Instead, focus on clarifying and collaborating with management to ensure that you have a clear understanding of what is required to successfully complete the PIP. Ending the meeting with a constructive and cooperative attitude will help set the tone for a positive path forward.
Should I Submit a Written Response or a Written Protest to HR in Response to the PIP?
In response to a Performance Improvement Plan (PIP), submitting a written response or protest may not always be the best course of action. While it’s natural to feel the need to defend yourself against perceived inaccuracies, a written rebuttal often does more harm than good. In Matt’s experience, management is under no obligation to read or respond to such documents, and they can be used against you if legal action ensues. Furthermore, most employee-written rebuttals tend to be overly emotional or filled with irrelevant details, which could make you appear unreasonable, confused, and improperly focused.
Instead of submitting a long rebuttal, it’s generally wiser to calmly register your disagreement or objection during the meeting and focus on addressing the PIP’s expectations. For instance, rather than trying to explain why management or HR “got in wrong” during the meeting with a long-winded story, or a list of circumstances and excuses, simply tell the person presenting the PIP that “I disagree with your analysis” or “I disagree with your characterization of my job performance.” In other words, just calmly and politely tell the person that you do not agree, but do not argue.
If you believe the PIP is part of a larger issue threatening your employment, seeking legal advice may be a better option than submitting a detailed protest. By carefully considering your next steps and ensuring you stay professional, you can protect your position and avoid making missteps that could hurt your case later.
What Can I Do if I Disagree About the Facts Upon Which the PIP is Based?
If you disagree with the facts upon which the Performance Improvement Plan (PIP) is based, it’s important to approach the situation carefully and strategically. Begin by calmly gathering evidence that supports your position, such as emails, performance data, or any communications that contradict the issues outlined in the PIP. This documentation can help you present a more accurate picture of your performance and any circumstances that may have impacted it. Using that information, create a timeline or synopsis/summary of the information that you believe supports your explanation and clearly shows why the PIP is inaccurate. Keep in mind that shorter is better – no one is going to listen to more than a few minutes of explanation, so your entire explanation should be a single page if possible, and never more than 2 pages long. Once you’ve written it down, practice explaining it out loud to a family member or friend, or just to yourself. Practicing what you will say out loud will improve your actual performance during the meeting because you will not be searching for words or thoughts – you will know exactly what to say. It will also make you more credible and believable.
Once you have gathered your evidence, written your short explanation and practiced talking about it out loud, request a follow-up meeting with your supervisor or HR to respectfully discuss your concerns. During this meeting, focus on the specific facts you disagree with and present your evidence in a professional manner. Whatever you do, do not accuse anyone of misconduct during the meeting – don’t accuse the company of discrimination, harassment, retaliation, etc. Instead, your attitude and demeanor should be cooperative – like you are trying to help the company solve the problem of your incorrect and inaccurate PIP. Do your best to not get emotional (practice will help with that). Make sure your presentation is short – 15 minutes or less is best. While it may not result in immediate changes to the PIP, it shows that you are engaged and committed to clarifying the situation.
What to Do Immediately After the Initial Meeting with HR/Management About the PIP
Immediately after the initial meeting with HR or management about the Performance Improvement Plan (PIP), it’s important to take a few key steps to set yourself up for success:
- Take Detailed Notes: While the meeting is still fresh in your mind, write down everything that was discussed, including the specific performance issues, expectations, deadlines, and any support that was offered. Document what was said by both you and your employer to ensure you have a clear record. Record the beginning and end time of the meeting and who was present.
- Review the PIP Thoroughly: Carefully go over the PIP document, making sure you fully understand the goals, timelines, and the standards you are expected to meet. If anything is unclear, reach out to HR or your supervisor for clarification. Make sure you read the entire document, meaning every word on every page. Don’t skip anything.
- Organize and Plan: Start organizing your tasks and create a plan for how you will meet the objectives outlined in the PIP. Break down the goals into manageable steps, and consider setting personal deadlines ahead of the formal ones to monitor your progress. If you think a particular goal is not attainable or impossible, consider asking your supervisor or HR for advice on how the company envisions you will accomplish the particular goal. Once again, approach the problem in a cooperative manner, not in an accusatory manner. Don’t accuse the company of setting impossible goals; instead, ask the company for instructions, advice and guidance on reaching the goal the company established.
- Seek Clarification if Needed: If you have any doubts or questions about what is required, it’s important to seek clarification as soon as possible to avoid misunderstandings that could affect your performance.
By taking these steps, you can remain focused on addressing the issues and improving your performance while maintaining a professional approach throughout the PIP process.
How Do I Monitor or Gauge My Progress Towards the Goals or Deadlines of the Performance Improvement Plan?
To effectively monitor your progress toward the goals and deadlines outlined in a Performance Improvement Plan (PIP), it’s important to take a systematic and proactive approach:
- Break Down Goals: Start by breaking the PIP goals into smaller, manageable tasks. This makes it easier to track your progress on a step-by-step basis and allows you to focus on specific areas for improvement.
- Create a Timeline: Set up a personal timeline that aligns with the deadlines in the PIP. Mark the key dates for each goal, and create interim deadlines for yourself to ensure you’re on track. Use tools like calendars, task lists, or project management software to help you stay organized.
- Schedule Regular Check-ins: Proactively request regular check-ins with your supervisor or manager to discuss your progress. These meetings offer a chance to receive feedback, clarify any expectations, and adjust your approach if necessary. Document these conversations and any feedback you receive.
- Track Measurable Outcomes: For goals that are quantifiable, keep a detailed record of your performance. This could include specific metrics like sales numbers, project completion, or customer feedback, depending on your role. Having this data on hand will help you demonstrate your progress.
- Seek Feedback: Continuously ask for feedback from your supervisor or colleagues on how you’re performing in relation to the PIP. Being open to constructive criticism and adjusting accordingly shows a commitment to improvement and can provide clarity on where you stand.
By taking these steps, you can gauge your progress, remain focused on meeting the PIP’s expectations, and improve your chances of successfully completing it.
Can My Employer Tell My Co-Workers That I Am on a Performance Improvement Plan?
In general, employers should keep the details of a Performance Improvement Plan (PIP) confidential and are not obligated to inform your co-workers that you are on a PIP. Disclosing such information to others may violate your privacy and could potentially lead to claims of defamation or retaliation, depending on how the information is shared.
However, in some cases, co-workers may indirectly learn about the PIP if they are involved in supporting your performance improvement, such as through additional training or collaboration. Even so, employers are expected to handle such situations with discretion and professionalism, limiting the sharing of specific details about your performance issues to those with a “need to know.”
If you believe your employer has inappropriately shared information about your PIP, you may want to consult with HR or seek legal advice to determine if your rights have been violated.
If My Employer Tells Me I Will Be on a PIP for a Specific Amount of Time (e.g. Three (3) Months), Can My Employer Extend the Duration of the PIP Before the End of the Time Period?
Yes, your employer can extend the duration of a Performance Improvement Plan (PIP) before the end of the specified time period if they believe additional time is needed for you to meet the outlined goals. This extension is typically based on the employer’s assessment of your progress. If they feel that, while improvement has been made, it is not yet sufficient, they may choose to extend the PIP to allow more time for you to meet the expectations. Don’t consider an extension to be bad news. In fact, an extension of your PIP is good news – you’re not fired. An extension means the employer does not believe it has sufficient grounds to terminate your employment. That means you have one last chance to keep your job – take action on that opportunity and don’t squander it by grousing about the extension of the PIP.
It’s important to note that employers should communicate any extensions clearly and provide reasons for the decision. If your PIP is extended, make sure to ask for specific feedback on what areas still need improvement and how you can meet those expectations during the extended period. Additionally, if you feel the extension is unreasonable, you may wish to seek guidance from HR or legal counsel to ensure your rights are protected.
Can an Employee Insist That the Employer Remove Any Reference to the PIP from the Employee’s Personnel File if the Employee Successfully Completes the PIP?
While employees can request the removal of a PIP from their personnel file, the decision ultimately rests with the employer. Employers are not legally obligated to remove it, but employees can make their case for why it should be excluded. If the employer refuses to remove your PIP from your personnel file, just drop the issue – no one will ever know about it unless you tell them about it. Generally speaking, no one is entitled to see your personnel file, so it should be a non-issue and certainly not worth antagonizing your employer immediately after you successfully completed the PIP.
If I Successfully Complete a PIP and Remain Employed, Does the Fact I Was on a PIP Mean I Will Never Get Promoted or Get a Raise Because of That Bad Mark “On My Record”?
Successfully completing a PIP does not automatically disqualify you from future promotions or raises. However, your future performance will likely be closely monitored, and ongoing excellence is essential to overcome any previous concerns. It is not uncommon for an employee that has been on a PIP to be promoted later on, although the promotion may get delayed because of the PIP. Keep in mind that many of the most successful people in business have been fired from a job.
Does Getting Put on a PIP Mean That the Employee Will Almost Certainly Get Fired? Can an Employee Successfully Get Past a PIP and Remain Employed?
No, being placed on a PIP does not guarantee termination. Many employees successfully meet the expectations of a PIP and continue their employment. It largely depends on your efforts and the nature of the performance issues. That said, getting put on a PIP is a clear sign that the employer is seriously considering termination of employment and that the situation requires your immediate attention.
Can My Employer Terminate My Employment Before I Complete the Performance Improvement Plan?
Yes, an employer can terminate your employment before you complete the PIP if they believe there is no improvement or if other factors arise. Employees in California do not have any statutory or common law right to complete a PIP because all employees in California are “at-will employees.”
What Happens if I Quit Before the PIP is Completed – Does That Mean I Got Fired?
If you quit before completing a Performance Improvement Plan (PIP), it is considered a voluntary resignation, not a termination. Quitting during a PIP does not mean you were fired; it means you chose to leave your position before the process was completed. While you are free to resign at any time, it is important to carefully consider this decision, as it could affect your eligibility for unemployment benefits or weaken any potential claims of wrongful termination if you believe your employer was acting unfairly. Matt’s advice is to never resign in lieu of termination – always, always, always make the employer terminate your employment. You will have a much better legal claim if you get fired versus if you quit.
If I Leave My Job Where I Got Put on a PIP, Can My Former Employer Tell My Prospective New Employers About the PIP When My Potential New Employer Calls to Confirm My Employment in Response to My Application for Employment?
In general, most employers follow a neutral reference policy, meaning they typically only confirm basic employment details such as your job title, dates of employment, and possibly your eligibility for rehire. It is uncommon for employers to disclose specific details about a Performance Improvement Plan (PIP) during a reference check, as doing so could expose them to potential legal risks, such as defamation claims.
If I Leave My Job Where I Got Put on a PIP, Do I Need to Tell My New Employer About the Fact I Was Put on a PIP at My Prior Job?
You are not legally required to disclose a PIP to a new employer. However, if asked about challenges in your previous role, it’s wise to be honest and explain how you addressed the feedback and improved your performance.
Contact the Ruggles Law Firm at 916-758-8058 to Evaluate Your Potential Lawsuit
Contact the Ruggles Law Firm at 916-758-8058 to Evaluate Your Potential Lawsuit
Matt Ruggles has a thorough understanding of California employment laws and decades of practical experience litigating employment law claims in California state and federal courts. Using all of his knowledge and experience, Matt and his team can quickly evaluate your potential claim and give you realistic advice on what you can expect if you sue your former employer.
Contact the Ruggles Law Firm at 916-758-8058 for a free, no obligation consultation.
Blog posts are not legal advice and are for information purposes only. Contact the Ruggles Law Firm for consideration of your individual circumstances.
