Getting the PIP Process Right
An employee continues to make mistakes that cost the company money. You meet with her and place her on a performance improvement plan (PIP). After the 60-day PIP period ends, you conclude that her performance did not improve adequately and terminate her employment. The employee files a complaint with the Wisconsin Equal Rights Division and the Equal Employment Opportunity Commission (EEOC) claiming that she was discharged because of her age and that similarly situated employees who were not in the protected group and had similar performance problems were treated more favorably than she was. The PIP document and process will be either your best friend or your worst enemy in defending the employee’s age bias claim. Let’s talk about how to get it right.
Address Performance Issues Promptly
At the PIP meeting with the employee, you should not hear her say that she had no idea there were performance problems in the areas addressed by the PIP. A PIP typically should be used when the employee has been previously advised of the performance deficiencies and efforts such as oral or written counseling have been unsuccessful in addressing the problem. For example, if you conduct annual performance evaluations, performance deficiencies should be specifically enumerated in the reviews. Additionally, consider conducting performance evaluations more frequently (e.g., quarterly or semiannually) to provide feedback to employees. As with most HR issues, documentation is critical.
Too often, employers are “Wisconsin” nice in identifying performance deficiencies. If an employee has a performance problem, identify it clearly, and do not sugarcoat or understate it. For example, if an employee regularly sends letters or e-mails with errors to clients, the message should not be “everyone makes mistakes; try to be a little more careful.” Instead, the message should be that the issue is a serious concern—it affects how clients view the company, and the company does not want to be viewed as sloppy. Be direct, and discuss the consequences of performance problems. Document all meetings, counseling efforts, and other interactions with the employee regarding the performance concerns.
Specifically Define Performance Deficiencies
You have identified performance deficiencies and made efforts to address the problems with the employee, but the issues persist. You conclude that you need to place the employee on a PIP. You sit down, put pen to paper (or keystrokes to computer), and draft the PIP. It is critical to define performance problems specifically, not generally. If the problems are typos in documents, errors in phone messages, and mistakes in calendaring events, specifically identify the issues instead of using general terms such as “poor eye for detail.” As with performance counseling, do not understate the problems in the PIP.
Include in the PIP a section on past efforts that were made to address the specific problems. The section should include dates of meetings and summaries of what was discussed, references to evaluations in which the performance deficiencies were discussed, and references to other documents you provided the employee in discussing the performance problems.
In identifying performance deficiencies, refer to specific examples of problematic behavior. If the employee left a phone message with an error in the callback number, refer to the incident. Be prepared to discuss the specific incidents related to the employee’s performance deficiencies during the PIP meeting. Have copies of relevant documents such as phone messages with errors or letters containing typos at the PIP meeting. Also, be prepared to discuss the consequences the company or specific employees suffered, or could have suffered, because of the performance deficiencies.
Describe Specific Objectives for Continued Employment
A key part of the PIP is laying out expectations the employee must satisfy to remain in your employ. The expectations should be directly related to specific performance problems. If the sole identified issue is typos in letters and e-mails, the objective shouldn’t be to impose a general requirement that the employee make no errors at work during the PIP period.
If possible, make goals objective—e.g., to have no tardy arrivals during the PIP period or make no errors in phone messages during the PIP period. Sometimes, the behaviors you attempt to address will not lend themselves to purely objective goals. For example, if the problem is how the employee treats subordinates, it is important to identify exactly how the employee’s behavior is condescending to other employees and explain that there must be no further observations or reports of that type of behavior.
It is important that the goals laid out in the PIP are obtainable. For example, if the performance deficiency involves a specific metric that must be met on a quarterly basis, do not give the employee 30 days to meet the goal. Also, the PIP should clearly identify the consequences if the employee fails to meet the goals. That typically will be termination of employment.
In addition, address what types of assistance you will provide to the employee. If the employee’s performance deficiency is proofreading, you may want to assign a strong proofreader to mentor him or enroll him in a proofreading class. Meet with the employee regularly to provide feedback on how he is doing. The employee’s supervisor should be involved in the PIP process, including providing feedback throughout the PIP period.
The PIP should include a specific period of time for the employee’s performance to improve. Include in the document specific language stating that the PIP can be terminated at any time prior to the end of the PIP period. That allows you to end the PIP—and the employee’s employment— if performance problems persist or the employee is being uncooperative regarding improvement. The PIP should also include language explaining that it does not establish any contractual rights or modify the employment-at-will relationship. Require the employee to sign the document or note that he refused to do so.
Attempt to anticipate how the employee will react to the PIP, and be prepared to respond. Employees often exhibit despair—for example, “There is no way I can do this; I am going to be fired.” In response, let the employee know that you will do whatever you can to help him succeed and that his success is the goal of the PIP. Other reactions may include being defensive, blaming others, or being argumentative or nonresponsive. It is a good idea to try to engage the employee during the PIP process. Get her suggestions on what might help her improve her performance.
Follow Your Policies, and Treat Employees Similarly
If you have written policies or procedures or established practices that govern the performance improvement process at your company, be certain to follow them. If a former employee files a discrimination complaint against your company, you would rather not be in the position of explaining why you did not follow your policies. Also, if your company treats performance improvement as a separate issue from discipline, be certain to maintain separation in the PIP process.
As with nearly all HR decisions, treat similarly situated employees the same. Before progressing to the PIP phase, look at how you have treated other employees who exhibited similar performance problems and received similar warnings. If you did not put a 25-year old male employee with a poor performance record on a PIP but placed a 60-year-old similarly situated female worker on a PIP, you can expect to see a discrimination complaint if the female worker is unsuccessful in completing the PIP and is discharged.
A PIP is an excellent tool for addressing performance deficiencies, particularly when the deficiencies persist after you have used other methods to address them. Be specific in defining performance deficiencies, and do not sugarcoat or understate performance problems. Set specific, realistic, and obtainable goals that the employee must achieve within a specific time period to continue his employment with the company. Involve the employee in the PIP process. Remember that the PIP will be a key document if the employee is discharged after not successfully completing the plan and files a claim against your company.
This article, slightly modified to note recent updates, was featured in the December 2017 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.