January 27, 2010

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.

What's the best way to document employee performance problems and your disciplinary efforts? Find out by joining us on Feb. 10 for a 90-minute webinar specifically for California employers: Employment Documentation in California: The Secrets to Shielding Your Organization from Liability with Ironclad Attendance, Performance, and Conduct-Related Documentation.

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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.

Why Documentation Is Your Best Defense

No one really enjoys sitting down and document employment issues. But talk to any labor and employment attorney, and they'll tell you that one of the keys to being able to defend litigation rests in sound documentation practices. Document, document, document — they all say it, but what does it really mean?

Join us on Feb. 10 for an in-depth 90-minute interactive webinar, specifically for California employers, all about how to draft employment documentation that gets your point across while minimizing your organization's legal liabilities.

Our expert — a Los Angeles-based labor and employment attorney — will explain why you should always make time to document issues related to employees' performance, attendance, or bad attitude. She'll provide you with expert insights so you can draft clear, concise, and ironclad documentation that will stand up before the Equal Employment Opportunity Commission, the state Department of Fair Employment and Housing, or a court. You'll learn:

• The key components that all good progressive-discipline documents, including warnings, disciplinary notices, or termination letters, share
• The practices you should put in place so your employment documentation is consistent and fair
• How to accurately convey employment objectives, expectations, and policy violations, as well as the consequences of not improving on performance issues
• Language to use so employees are actually being held accountable for improving their own performance or conduct
• How to document attendance issues following the expiration of workers' protected leave under state and federal leave laws
• How to handle a situation where there may be a medical or psychological reason behind a worker's performance or conduct-related issues so you don't violate the ADA or FEHA
• The nightmare scenarios that have resulted from poor documentation practices for countless employers and how to avoid making those mistakes

Register now »

Find out more »