employee performance improvement plan: what does it · pdf filealways lets him slide and...
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Employee PerformanceImprovement Plan: WhatDoes It Really Improve?
LeadingAge Maryland 2017 AnnualConference
BALTIMORE, MD
BETHANY BEACH, DE
BETHESDA, MD
COLUMBIA, MD
DEARBORN, MI
FALLS CHURCH, VA
LEXINGTON, KY
PITTSBURGH, PA
ROANOKE, VA
TOWSON, MD
WASHINGTON, D.C.
WILMINGTON, DEMark C. Franco
Associate CounselWhiteford, Taylor & Preston, L.L.P.3190 Fairview Park Dr., Suite 800
Falls Church, VA 22042703-280-3383
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Common Definition
A tool employers use to help underperformingemployees succeed in the organization.
What is a Performance Improvement Plan (PIP)?
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Mark is nearing retirement age and has been workingat a company for 10 years. He has a record of good butnot stellar performance reviews. He is in a high-payingmid-level position and is at the top of his salary range.
In the last few years, Mark often has problems meetingdeadlines and the work usually has errors. But, he hasa great relationship with his supervisor Gail, whoalways lets him slide and compensates by doing someof his work herself. She has not documented anythingnegative with regards to Mark’s performance.
Hypothetical: PIP or no PIP?
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Gail is an overachiever and eventually gets a greatopportunity at another company. Following Gail’sdeparture, supervision of Mark falls to Dawn,Gail’s supervisor and the division head. Dawnnever liked Mark personally and always thoughtthey could find someone better for the position,but she let Gail deal with Mark’s issues. In the firstmonth under Dawn, Mark has missed 3 deadlinesand his other work has numerous errors. Dawnconsiders putting Mark on a performanceimprovement plan.
Hypothetical Continued
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Should Dawn put Mark on a PIP?
Why or why not?
Breakout Discussion
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I would argue:
Should Dawn Put Mark on a PIP?
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you don’t want the employee to improve?
How can you improve performance when…
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Why would you use a PIP?
Or
How have you used a PIP?
Breakout Discussion
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General goals:
To set baselines for employee performance
To evaluate an employee’s performance
To document performance issues for the employee’s record
To approach performance problems in a systematic manner
To develop and improve the employee’s performance
Often Additional goal:
To protect the organization in advance of termination
Why use a PIP?
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If your intended outcome is performanceimprovement, then yes it could.
If your intended outcome is to documentissues to be able to terminate the employee,then yes a PIP could also help achieve thatgoal.
But is it really the right tool for that?
Will a PIP help you achieve your intendedoutcome?
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What are you really trying to improve?
The employee’s performance?
The case for termination?
It’s calledPerformance Improvement Plan
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Consider:
Could be a waste of time and energy
Could be challenged as pretextual in somecircumstances
Unfair to the employee
Could undermine your ability to use thePIP in a positive manner
Why use a PIP if you don’t want to improveperformance?
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A perception that it is a magical shieldthat will protect the organization.
So why are PIPS often used prior totermination?
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The Fourth Circuit Court of Appeals has ruledthat being placed on a PIP, by itself, is not anadverse employment action. But it doesbecome actionable if subsequently used as abasis to detrimentally alter the terms orconditions of the recipient’s employment.
Jensen-Graf v. Chesapeaker Employers’ Ins. Co., 616Fed.Appx. 596, 598 (4th Cir. 2015)
PIP in Case Law
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Pretext generally refers to a reason for anaction which is false, and offered to cover up
true motives or intentions.*
* USLEGAL.COM
Pretext
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In Buchahagen v. ICF Int’l, Inc., sixty-seven year oldemployee alleged that her placement on a performanceimprovement plan and subsequent termination waspretextual and that the actual reason for hertermination was age discrimination. She noted youngeremployees who made the same mistakes covered bythe PIP were not put on such plans. In fact, they werementored and sent to management training courses.*
* Buchhagen v. ICF Int’l, Inc., 545 Fed.Appx. 217, 220 (4th Cir.2013)
PIP alleged as Pretext
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To set baselines for employee performance
What about a position description? Performanceevaluation? Employee Manual?
To evaluate an employee’s performance
What about direct feedback? Performance evaluation?Team Meetings?
To document performance issues for the employee’srecord
What about emails? Supervisor’s notes? Performanceevaluations? Complaints?
Is a PIP really the right tool?
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To approach performance problems in asystematic manner
Why do you need a PIP to be systematic?
To develop and improve the employee’sperformance
Yes, it is the right tool.
To reduce liability in advance of termination
Sorry to say, it’s not a magic bullet.
Cont.
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So when is it appropriate to use aPIP?
Breakout Discussion
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Improve performance as the primary,intended outcome
To develop talented employees incoordination with the organization’s otherdevelopment programs
To comply with the organization’semployment policies
Use a PIP to:
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Society for Human ResourceManagement Steps*:
Step 1: Document performance areas
Step 2: Develop an action plan
Step 3: Review the Performance ImprovementPlan
Step 4: Meet with the Employee
Step 5: Follow Up
Step 6: Performance Improvement PlanConclusion
*www.shrm.org
Standard PIP Process
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Objective
Factual
Specific
Standard/Established Format
Use examples
Document Performance IssuesKey Considerations
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Employee information Relevant datesDescription of performance discrepancy or
gapDescription of expected performanceDescription of actual performanceDescription of consequences Plan of action Signatures of the manager and employee Evaluation of the plan of action and PIP
Document Performance IssuesComponents
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Get employee’s feedback on their planMake the process collaborative Try to eliminate any confusion or
misunderstanding at the beginningUse job description and HR policies to
develop the goals and expectations Identify assistance available to employee Establish regular progress meetings Identify all the outcomes possible
Develop an Action PlanKey Considerations
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Seek assistance from supervisor’s ownmanager and HR department
Allows for objective view
Can help to remove any emotional content
Can help confirm:
Specificity is appropriate
Goals are measurable
All areas of the action plan are relevant tothe employee
Results are attainable
Timeframe is appropriate
Review the Performance PlanWith HR Personnel
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Have HR assist, if available Be clear:How the process will work
Areas of concern for improvement
Expected performance and behavior
The assistance available to the employee
The potential outcomes at the conclusion
Be open to feedback and suggestions by theemployee
Have both employee and supervisor sign
Meeting with the Employee
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Stick to the regular progress meetingsGive the employee ample opportunity to
seek guidance or feedback Be Objective Try to eliminate any roadblocks Try to keep the employee on track Take notes Recognize and reinforce any successful
progress madeBut don’t mislead the employee
Follow Up
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Depends on how you are using the PIP:
Status Quo
Reassignment
Transfer
Demotion
Termination
Conclusion: No Improvement
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Depends on how you are using the PIP:
Status Quo
Extend the PIP
Re-evaluate and revise the PIP
Reassignment
Transfer
Demotion
Termination
Conclusion: Some improvement
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Depends on how you are using the PIP:
Status Quo
Promotion
Cake and Ice Cream
Conclusion: Goal Achievement
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Evaluate why you want to use a PIP beforeyou do so
Don’t rely on a PIP as a shield against anadverse employment decision
Consider using it as a development toolrather than a protective tool
Parting Thoughts
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Mark Franco
Associate Counsel
Whiteford, Taylor & Preston
703-280-3383
Contact Information