HR Management & Compliance

PIPs + Progressive Discipline = Caution Required

Performance Improvement Plans — or PIPs — have become a common part of progressive discipline programs. After an initial verbal counseling, many employers use formal PIPs to set specific goals for employee improvement, and to document employee progress or lack of progress in relation to future discipline.

But you should be cautious about including too much in a PIP that is also part of a progressive discipline program.

If the performance issues included in a PIP are not specifically related to the reason discipline was initiated, the PIP can be used by an employee’s lawyer to show that the company was trying to get rid of the employee by setting arbitrary or overly burdensome performance goals — especially if the employee is then later disciplined for failing to meet the unrelated PIP items.

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Consider the following example:

Jane has a problem with habitual tardiness, which Jane claims is due to her insomnia as a result of work-related stress. Jane’s supervisor verbally counsels her that repeated and unexcused tardiness will not be tolerated, but Jane still fails to report to work on time.

In consultation with HR, Jane’s supervisor puts her on a PIP that includes goals of reporting to work on time for 30 days, meeting new production deadlines, improving communication with coworkers, and taking on a new job duty.

A month later, having reported to work on time for 30 days, Jane is terminated for missing production deadlines and failing to satisfactorily perform the new job duty.

Jane sues, alleging disability discrimination. The company claims that Jane was terminated for failing to complete her PIP in a satisfactory manner, but Jane’s lawyer says the company threw the “kitchen sink” into the PIP in order to set Jane up for failure so it could get rid of a disabled employee who required a scheduling accommodation.

Messy? You bet. Jane may or may not win her lawsuit, but the company has created a convoluted discipline record that won’t look great to a jury — and has almost certainly increased the costs of defending itself.

The lesson here is that when you use PIPs in connection with progressive discipline, you should be sure to target the PIP only to those issues for which the employee has received counseling.

We’ll have more on how to effectively use PIPs in an upcoming issue of California Employer Advisor.

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