Performance Improvement Plans - Background

A performance improvement plan ("PIP") is a document that (1) explains how an employee is falling short of performance or behavior standards and (2) identifies objective steps or actions the employee can take to improve performance or behavior. Typically, an employee will be given 30, 60, or 90 days to satisfy the objectives outlined on the PIP. That said, the duration of a PIP is flexible and could depend on any number of factors, such as the business needs, the amount of counseling previously issued to the employee, the number of deficiencies, the complexity of the PIP, or any combination thereof.

The purpose of a PIP is to improve employee performance or behavior, and it should be written with this goal in mind, as opposed to approaching the PIP as a perfunctory step before termination. Although there is no standard template for a PIP, an effective PIP will include the following elements. First, it will explicitly state the manager's performance (or behavioral) expectations. These objectives should be realistic and measurable to the extent possible. For example, if a fulfillment center employee has made an unacceptable number of picking errors, explain what would be considered acceptable - e.g., "We strive to pursue 100% accuracy. However, an error rate of less than 3% per month is considered acceptable."

Second, the PIP should clearly explain how the employee's performance or behavior is falling short of expectations. As a best practice, be sure to provide examples of shortcomings when possible. Continuing with the examples above, define the problem - e.g., "Your picking error rate for the month of July was 13%, which exceeds the company's acceptable error rate."

Third, the PIP should state with specificity the actions to be taken by the employee in order to meet the required level of performance, as well as explain how the employee's progress will be measured with respect to each goal. As a best practice, be sure to identify any resources and support that will be provided to assist the employee. Continuing with the example above, explain the action plan - "You will be retrained on fulfillment operations and systems, and you will shadow a trainer for two shifts. Your work will then be monitored each shift for the next month and you will meet with your supervisor weekly to discuss your error rate."

Finally, the PIP should explain the consequences of failing to meet expectations by the deadline given. The PIP also should clearly state that there is no guarantee of employment for the duration of the PIP and should warn that employment may be terminated prior to the end of the PIP if it becomes obvious that goals will be met within the timeline indicated.

The employee's manager should meet with the employee regularly (e.g., weekly or biweekly) to track progress and provide feedback. As a best practice, document these meetings, as well as the progress or lack thereof at each meeting.

If a PIP results in termination, it should have afforded the employee notice that they were not meeting expectations, a fair opportunity to improve, and notice of the consequence of failing to improve. Assuming the PIP accomplishes these objectives (no pun intended), it can be used by the employer to demonstrate the employee was terminated for the employee's own shortcomings, and not due to any discriminatory or retaliatory reason.

Fact Pattern:

• Manager Mike would like to terminate Employee Emily; however, he will "settle" for placing her on a PIP, but he just wants her "out of here".
• Manager Mike has not issued any written disciplinary action to Employee Emily.
• Employee Emily receive a score of 4 out of 5 on her last performance review which occurred about a year ago. However, Manager Mike was not the manager who completed that review. Manager Mike is new to role and took over about a month after the performance cycle ended.
• Employee Emily has been assigned to a project team overseeing the implementation of a new HRIS platform. The project is on a very tight timeline and delays are costly.
• The project team meets bi-weekly to review the project plan. Over the past two months, Employee Emily has missed several important deadlines. The project manager has asked Employee Emily why she missed the deadlines and what the team could do to help. Emily has provided a variety of excuses in response and has been defensive during the meetings. Other members of the team have had to take over some of Employee Emily's responsibilities but, even then, the project has been delayed.
• Recently, after a project team meeting, Manager Mike pulled Employee Emily aside informally and told her that she seems to be "checked out". He questioned her reliability since she missed several project deadlines, which have negatively impacted the overall project timeline. He also pointed out that Employee Emily was unprofessional and rude to the project manager and other colleagues when they asked about the missed deadlines. This is the only time Manager Mike has spoken with Employee Emily about the project; however, the project manager has shared his concerns related to Employee Emily with Manager Mike.
• Manager Mike also shared with you that Employee Emily is usually late for work and has been excessively absent over the last 2 months.

Readings:

For this assignment, please read:

• Performance Improvement Plans ("PIP") description below.
• Phillips v. United Airlines, Inc., 20 C 3333 (N.D. III. Sep. 15, 2021)
• Santana-Vargas v. Banco Santander, No. 18-1990 (1st Cir. Jan. 27, 2020)

Question:

1. Explain whether you would recommend placing Employee Emily in the fact pattern below on a PIP. If you would recommend another form of discipline, please explain what type of discipline you would recommend issuing and why.
2. In addition, and irrespective of your recommendation, please draft a PIP using the template

provided that addresses the performance and behavior deficiencies identified in the fact pattern below for Employee Emily. and add additional facts as needed, e.g., to clarify subjective remarks in the fact pattern. Please also feel free to add additional rows in the chart as needed.