let's assume that you (acting as Manager Mike's HR business partner) convinced Manager Mike to put Employee Emily on a 90-day PIP. You and Manager Mike met with Employee Emily and discussed the concerns outlined in the PIP, as well as the path to improved performance. Employee Emily explained that she was blind-sided by the PIP because she had always received positive feedback on her performance; however, Employee Emily also noted that she appreciated the opportunity to improve. Manager Mike provided Employee Emily with a copy of the PIP, which she signed, thereby acknowledging receipt.

The first three weekly meetings between Manager Mike and Employee Emily went well. Employee Emily met the expectations set forth in the PIP, and she successfully completed the deliverables for all 3 weeks. Manager Mike had to cancel his fourth weekly PIP meeting with Employee Emily because of a scheduling conflict.

Prior to their fifth weekly PIP meeting, Manager Mike learned that Employee Emily missed another important project team deadline. As a result of Employee Emily missing the deadline, the entire project timeline was pushed back by 2-4 weeks. This delay may result in additional consultant fees. The project manager met with Manager Mike after the project team meeting and told Manager Mike that the project team has lost confidence in Employee Emily. He further insisted that Manager Mike immediately remove Employee Emily from the project team and replace her with someone reliable.

During their week 5 PIP meeting, Manager Mike asked Employee Emily about the delay. Employee Emily explained that she didn't know what had happened; she thought that she had more time and confused the deadline with another one. Employee Emily further explained that she has been having trouble remembering and concentrating for several months now but didn't want to say anything; however, she felt like she had to say something now since it was impacting her work. Employee Emily also shared that she has an appointment with a neurologist next week and hopes to "get to the bottom of it" then. Manager Mike shared the project team's frustration with Employee Emily and told her that he needed to time to consider next steps.

Later that week, Manager Mike scheduled time to review the situation with you. Manager Mike would like to move forward with termination as soon as possible. He explained that he cannot move Employee Emily to another project; nobody wants to work with her. He also shared that his other direct reports have expressed frustration because they have had to "pick up Employee Emily's slack", and he fears that he will lose his top performers if the company continues to tolerate this situation. If he cannot terminate Employee Emily immediately, he would like you to consider whether or not it would be possible to eliminate her position in the company-wide reduction in force that will take place later this month. He believes that Employee Emily has not been doing much work, and although he would "hate to lose the headcount", he would rather go without a person on his team than continue to deal with this "insufferable situation".

You inform Manager Mike that you will review the situation and get back to him with a recommendation. Fully aware that this case is not as straightforward as Manager Mike believes, you schedule a call with your company's in-house labor and employment attorney to review the termination request.

In preparation for that call, please devise a short memo to file summarizing the potential legal risks associated with moving forward with termination.

• identify at least 2 potential legal risks/claims.
• For each of the potential risks/claims identified:
  • Provide the facts from the fact pattern that you believe are relevant to that potential risk/claim
  • Identify any relevant documents or data that relate to that potential risk/claim (these items could be explicitly mentioned in the fact pattern, or you can identify other data not mentioned in the fact pattern that you believe would be helpful to the analysis);
  • What are 2 questions for outside counsel (these should be different for each potential risk/claim identified; or stated another way, do not ask the same two questions for both potential risks/claims identified); and
  • Identify at least 1 method of potentially mitigating that potential risk/claim.