“Can I be treated differently than others while on my Performance Improvement Plan?”

Question: Can an employer single out an employee who is on a Performance Improvement Plan (“PIP”)? 

I have been given a deadline of completing my work by 8:30 am, while my co-workers are not given any deadlines at all. Also, deadlines given to me are truly impossible to meet. 

                                                             Javier
Cedar Park, Texas

Answer: Dear Javier: In some ways you can be treated differently, and in some ways you can’t be. Please let me try to explain; here’s my best:   

1. As a general rule, every employee is a unique and different person, and the law does not require that every employee be treated in the exact same way as every other employee. Whenever I am asked a question like yours, I always say, “What would you say if your child told you, ‘Mom, you must treat me the exact same way you treat my brother and sister’?” I’m pretty confident you would say something like “Says who?” or “No way, everyone and every situation is a little different.” Well, it’s pretty much the same way in the employment context: no two employees and no two employment situations are exactly the same, either. So, treatment of different employees does not have to be identical. 

2. That said, there are some limits to how differently an employer can treat its employees. (Let’s call these “over the line differences.”) For example, an employer cannot simply deny certain employees a safe working environment, or the protections of the minimum wage and overtime laws. And, too, an employer would be on very shaky legal ground if it promised all of its employees a right to be free from illegal discrimination or retaliation, but fulfilled that promise only to some, and not to others. Thus, though employer’s have a degree of freedom, that freedom – like every kind of freedom – has its boundaries.  

3. What is certain is that employers cannot treat employees in varying ways due to the the employees’ age, gender, race, disability, ethnicity, pregnancy, and other so-called “protected categories.” (Let’s call these “improperly motivated differences.”) I know this may sound odd, but all people, and that includes employers, are actually quite free to “discriminate” in many different ways, but not on the basis of these “protected categories.” So, an employer is free to say, “We will only hire tall people.” Or “We do not want to hire people who smoke cigarettes, or who have college educations, for this particular job.” Those kinds of “discrimination’ are not prohibited, although they definitely are a kind of “discrimination” and result in a clearly “unequal treatment.” Seems unfair? Well, our society has not decided that all forms of discrimination are so unfair to be made illegal, only a few certain kinds.  

4. My view is that Performance Improvement Plans follow the same rules: they can and should result in some degree of different treatment, but not (a) “over the line different ways” or (b) “improperly motivated different ways.” If you start work at 8:15 am, and you are expected to complete a full day’s work by 8:30 am, and no one else has such “wacky” deadlines, well, that is simply “over the line.” Also, if you are given deadlines that seem to be set so that you are being “set up to fail,” then that is a kind of fraudulent motivation, and so is improper and illegal.  

5. If you believe how your Performance Improvement Plan (“PIP”) is being carried out is either “over the top different” or “improperly motivated different” you really do need to report it to Senior Management and Human Resources. While Performance Improvement Plans can be tools of constructive collaboration, (a) the decision to place someone on a PIP, (b) their design, and (c) how the PIP is carried out often end up improper, illegal and fraudulent. Through them the employee can be denied his or her legal and workplace rights, and the employer – including the employer’s shareholders or other owners – can be wrongfully and fraudulently deprived of a good, loyal and valuable employee.  

It’s not easy to “Stand Up and Push Back” to a Performance Improvement Plan. To help you with “What to Say and How to Say It”™, we offer a Model Response to Receiving a Performance Improvement Plan (“PIP”). (Though intended to “push back” to receipt of a PIP, it can be adapted to be used to “push back” to how a PIP is carried out.) To obtain a copy, just [click here.] Delivered by Email – Instantly! 

This kind of “Pushback to a PIP” is an important part of your standing up for yourself and should not be avoided. Fact is, Javier, you have little to lose, because if you don’t “Stand up and push back” then sooner than you think you will probably be out of a job. 

You face a challenge, no doubt about that, but many, many people overcome that exact kind of challenge every day. You can, too.

My Best,
Al Sklover

 P.S.: Standing Up to a Performance Improvement Plan (“PIP”) is one of the “scarier” experiences at work. To ease your mind and help you, we offer a 152-Point Guide and Checklist for a PIP. To get your copy, just [click here.] Delivered by Email – Instantly! 

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