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?

What is an Employee Performance Improvement Plan?

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 allow the employee to improve their performance. An effective employee performance improvement plan should:

• Identify the acceptable performance levels and where the employee’s performance falls short.
• State specific, measurable, and achievable objectives.
• Be time-bound.
• Clarify the manager’s role in facilitating the employee’s success.
• Clearly state the consequences if the employee does not meet the objectives within the specified 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.

How Is an Employee Performance Improvement Plan Supposed to Work?

Ideally, a Performance Improvement Plan (PIP) is designed to provide a structured framework for identifying employee performance issues, setting clear goals, and offering support to help the employee succeed.  Here’s how a PIP is supposed to work:

1. Identify the Performance Concerns

• Purpose: The PIP begins by clearly identifying the specific performance issues or behaviors that need improvement.
• Examples: Missed deadlines, absenteeism, sales numbers below expectations.
• Documentation: The performance deficiencies should be supported by objective evidence, such as performance reviews, metrics, or specific incidents.

2. Set Clear and Measurable Goals

• SMART Goals: The plan should outline specific, measurable, achievable, relevant, and time-bound (SMART) objectives for the employee to meet.
• Examples: “Increase sales by 10% within 60 days,” or “Submit all reports on time for the next three months.”

3. Define the Timeline

• Duration: PIPs typically last 30, 60, or 90 days, depending on the complexity of the performance concerns and the time reasonably needed to demonstrate improvement.
• Checkpoints: Regular check-ins (e.g., weekly or biweekly) should be scheduled to review progress and provide feedback.

4. Provide Support and Resources

• Training and Tools: The employer should provide resources, such as additional training, mentoring, or tools, to help the employee succeed.
• Manager Involvement: Supervisors or HR should actively support the employee by providing guidance and addressing any obstacles.

5. Monitor and Evaluate Progress

• Regular Feedback: Managers should provide constructive feedback during the PIP period, highlighting improvements and areas still needing attention.
• Documentation: Progress should be documented to ensure transparency and accountability.

6. Conclude the PIP

• Successful Completion: If the employee meets the outlined goals, the PIP is considered successful, and the employee resumes normal performance expectations.
• Further Action: If the employee fails to meet the goals, the employer may take additional steps, such as extending the PIP, reassigning the employee, or, in some cases, termination.

The Implications of Performance Improvement Plans

However, the “ideal” is not the experience for many employees. 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 and 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 many performance improvement plans are superficial and look only at the employee’s performance, not at any potential obstacles within the company.

The Nature of Performance Improvement Plans

Moreover, performance improvement plans are often punitive rather than 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 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.

Is a Performance Improvement Plan an Adverse Action?

Being placed on a performance improvement plan is not typically considered 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 plan should talk to an experienced employment lawyer before they resign. In many situations, an employee’s voluntary resignation — even in the face of a likely future termination — will prohibit that employee from filing a legal claim based on that separation.

Should I Resign Because I Received an Employee Performance Improvement Plan?

Resigning while you are on a Performance Improvement Plan (PIP) is a highly personal decision, but one that can have serious professional and legal implications. Here are some considerations:

1. You Avoid Completing the PIP: By resigning, you are no longer required to complete the PIP or meet the outlined performance goals, and you can leave on your own terms. For some employees, that is very valuable.

2. Your Resignation Is Voluntary: On the other hand, if you resign during a PIP, your separation is usually considered a voluntary action. This means that you can honestly report that you have not been terminated. But it also means you may be ineligible for unemployment benefits, which are typically reserved for employees who are involuntarily terminated.  And potentially more significantly, you may be unable to pursue any legal action related to your separation. (You may still be able to pursue a claim for constructive discharge, but that is often very difficult.)

Talk to Our Experienced Attorneys About Your Performance Improvement Plan

Regardless of the employer’s intent and the reason for using a performance improvement plan, receiving one is not a good thing. At Garrison Law, we have long been recognized as a preeminent Connecticut law firm for the representation of employees, including related to performance improvement plans and the employer’s subsequent actions. We would be happy to discuss your situation and help you through this difficult process.