Deciding whether to consult an attorney when facing a Performance Improvement Plan (PIP) depends on several factors. For example, if a PIP seems unfair or unwarranted, and there are potential signs or incidences of employment discrimination or retaliation, it is important to discuss your concerns with an experienced attorney, particularly when a PIP results in an adverse employment action. All too often, PIPs are used as pretext for employment termination, which may be related to discrimination or retaliation against an employee.
When an employee suspects that their PIP is due to discrimination or is being wielded as a tool to retaliate, it is important to consult with an experienced employment law attorney in a timely manner to understand your rights.
PIP Red Flags Pointing to Discrimination or Retaliation
A sudden or unexplained PIP following protected activity may be a red flag. If a PIP follows soon after an employee engaged in protected activities such as reporting discrimination, harassment, or unethical behavior in the workplace, OR, following a request for accommodations for a disability or job protected leave, the PIP may be retaliatory.
If a PIP applies to an employee, but not to others who have similar performance issues, particularly those who are outside a protected group (based on race, color, national origin, age, ethnicity, sex, disability) it may suggest discriminatory targeting.
A PIP that has vague, subjective criteria, and unrealistic expectations, or lacks support or resources to help an employee improve, might be setting up an employee to fail. If discrimination or retaliation is afoot, the PIP may be a pretext for termination.
A PIP coming out of left field, where there are no previous warnings, documented performance issues, or regular feedback may suggest the PIP is being used as a tool to discriminate or retaliate against an employee rather than as a means for improvement.
Hostile or biased treatment, comments, or behavior suggesting bias in the workplace related to an employee’s protected characteristic (race, religion, sex, age etc.) leading up to a PIP may signal discriminatory intent.
What to Do When a PIP is Discriminatory or Retaliatory?
If you believe you have been placed on a PIP due to workplace discrimination or retaliation, it is very important to document everything.
Keep detailed records of the PIP, communications including what was said during in-person meetings, emails, or other correspondence; performance reviews before and after; proof of work that counters the PIP claims; and any other details of incidences that tie in. Include dates, times and witnesses.
If the PIP is vague, seek clarification in writing that outlines performance issues and clear and measurable goals needed to improve.
Review your employee handbook to ensure policies are being followed with regard to the PIP, documenting any contact with HR to discuss your concerns.
If you suspect discrimination or retaliation, consult an employment law attorney to understand your rights. If it is a case of discrimination or retaliation, your attorney will assist you in filing a claim, which may result in the payment of economic damages such as back pay if the illegal activity resulted in wrongful termination; front pay if reinstatement is not feasible; out of pocket expenses incurred due to termination, reimbursement of lost benefits, and attorney’s fees. Non-economic damages may include compensation for emotional distress, while punitive damages are sometime awarded to punish the employer for egregious or intentional misconduct.
If you believe your employer is using a PIP as a tool to discriminate or retaliate against you, contact the employment law offices of Alan C Olson & Associates for immediate assistance today.
