Mar 14 2019
Big Picture Perspective on a Difficult Situation
In an ideal world, an employer will facilitate and support an employee’s ability to grow, thrive, and succeed at work. By performing well, the employee in turn contributes to the company’s success. But unfortunately, not every employee-employer relationship enjoys this type of symbiosis. And when the relationship is not working well, many employers utilize what is called a performance improvement plan to formally document the employee’s need to improve.
So if you get a performance improvement plan, what does this mean for you?
From the employer’s perspective, the performance improvement plan is a formal document that identifies the employee’s performance deficiencies and provides a plan to give the employee the opportunity to turn that performance around. An effective performance improvement plan should: (1) identify the acceptable performance levels and where the employee’s performance falls short; (2) state specific, measurable, and achievable objectives; (3) be time-bound (typically requiring the employee to improve within 30, 60 or 90 days); (4) clarify the manager’s role in facilitating the employee’s success; and (5) clearly state the consequences if the employee does not meet the objectives within the time frame. Many employers take the position that this formal, structured method of documenting an employee’s performance deficiencies is exactly what the employee needs to improve.
But that is not the experience for many employees and even for many forward-thinking employers. Even performance improvement plans with all the above qualities can still fall short in helping the employee. That is because, rather than being a helpful, productive method for turning the performance around, the performance improvement plan is commonly understood by many employees to be the first step to termination. This is in part because performance improvement plans are superficial and look only at the employee’s performance, not at any potential issues within the company.
Moreover, performance improvement plans are punitive, not educational. A good manager, for example, should sit down with an assertedly-ineffective employee, talk about the employee’s work product, try to figure out the “root cause” of the issue, and offer positive, concrete suggestions for improvement. An employee should be particularly wary if the performance improvement plan lacks any follow-up coaching or instruction. It may be that the performance improvement plan is merely a “paper trail” to formally document poor performance supporting termination.
Importantly, the issuance of a performance improvement plan may impact an employee’s ability to pursue legal claims upon termination. In most employment discrimination or retaliation actions, an employee must demonstrate an “adverse action” — that is, a material change in the employment relationship — due to discrimination or retaliation. Being put on a performance improvement plan is not typically thought of as an “adverse action” because it merely requires an employee to follow certain requirements or meet certain expectations. But a performance improvement plan can sometimes impact an employee’s compensation or ability to advance, in which case it may be considered an adverse action. If the latter applies to you, it would be helpful to seek advice from legal counsel.
Above all else, employees who are tempted to quit their jobs in response to a performance improvement plans should talk to an experienced employment lawyer before they resign. In many situations, an employee’s voluntarily resignation — even in the face of a likely future termination — will prohibit that employee from filing a legal claim based on that separation.
Regardless of the employer’s intent and the reason for using a performance improvement plan, receiving a performance improvement plan is not a good thing. At Garrison, Levin-Epstein, Fitzgerald & Pirrotti, P.C., we have long been recognized as a preeminent law firm in Connecticut representing people in employment disputes, often related to performance improvement plans and the employer’s subsequent actions. We would be happy to talk about your situation and help you through this difficult process.