“Are Performance Improvement Plans enforceable as contracts?”

Question: I worked as a Manager with four other Managers. I was hired when I was 63, and fired when I was 67. While employed, one of the Managers I worked with was promoted to Director, and proceeded to make life difficult for me. For over two years, I was deliberately left out of Managers’ meetings. Then I was put on a 60-day PIP.

Even though the PIP required that “All parties agree to help the employee (me) succeed,” they did nothing to help me. Even though the PIP laid out deliverables and delivery dates, they never asked to see my achievements or my improvements. They did nothing that was required of them by the PIP. Then one day the HR Director just appeared and said, “You’re fired.” I had to leave the premises within 10 minutes.

Can a PIP Agreement be enforced like any other contract? Also, can I sue them for segregation or discrimination for not including me in two years of management meetings?

Jacksonville, Florida

Answer: Dear RD:    

Your first question is a good one, but not easily answered. I believe the way most PIP’s are worded, they are, indeed, “contracts,” but I don’t see them as being “enforceable like other contracts,” but “enforceable” in other ways.   

1. The Employer’s Duties in a PIP – if any – are not usually spelled out. While Performance Improvement Plans may or may not be clear about the employee’s deliverables, delivery dates, achievements and improvements – although most are not clear in this way – in my experience it is extremely rare for a Performance Improvement Plan to be clear as to any employer’s duties. Rather, any employer’s duties are non-existent, vague and only implied, at best. For this reason, any claim that the employer (i) agreed to certain identifiable duties, or (ii) failed to fulfill those duties to you, are quite hard to make, or prevail upon in Court. If the employer has any real duty in a PIP they are general duties of good faith and honesty, which are duties the breach of which are not easy to prove.

2. To “enforce” a claim in the usual way, an Employee has to prove “damages.” In any lawsuit, the person bringing the suit has to prove not only legal liability by the other “side,” but also resultant damages. That’s a bit hard to do with a Performance Improvement Plan, as almost all employees are what we call “at will” and thus have no basis to expect any continued employment.

For example, if a PIP said, “We will keep you employed for at least 60 days, while we review your performance” that would likely constitute a contract that you could claim gives rise to an enforceable right to continued employment for the next 60 days (unless you engaged in truly bad conduct.) However, most PIP’s are not worded that way. Instead, most PIP’s include carefully drafted language that permits the employer to “withdraw” the PIP at any time if the employee is not viewed as making sufficient progress.

3. PIP’s are most effectively “enforced” by employees not in court, but in negotiation. While not easily enforced in Court, most often PIP’s can be “enforced” by raising the issues of company honesty, company integrity and company policies. You can bring to your Manager’s attention that, if it appears that his or her conduct has been dishonest, lacking in integrity, and in violation of company policies, he or she is far more likely to “clean up” the situation than to permit you to bring your “story” to (a) the CEO, (b) the Board of Directors, or (c) to Court. Said differently, if and when your boss sees that his or her job is on the line, he or she is much more likely to “negotiate” with you.

4. As to your second question, not permitting an employee to attend meetings is not illegal “discrimination” or “segregation.” You report that you were hired at age 63, and fired at age 67. If they had no problem hiring a 63-year old, generally the law says that shows they are not discriminating by age. The law does not require that an employer treat each employee equally in all respects; gosh, that would require the Courts to oversee each meeting in each department of each employer. Wow, that would be impossible. What you describe does not seem to be either illegal “discrimination” or illegal “segregation.”

As I said above, a really good question, though not that easy to answer. Nonetheless, I do hope this is of help to you.

Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.