Performance Improvement Plans Archives

“HR says my PEP (Performance Enhancement Plan) is not a PIP. True?”

Published on July 16th, 2019 by Alan L. Sklover

Sklover Working Wisdom Caution

Question: Two weeks ago I received from my manager a document with the title “Performance Enhancement Plan.” It basically says that I am not performing satisfactorily (which is untrue), and unless I immediately improve drastically in vague ways (like “make me feel confident in you”) in 60 days, I could get terminated.

The last sentence of the Performance Enhancement Plan is this: “Failure to show immediate and sustained improvement while in this PEP may result in additional disciplinary action up to and including termination of employment.”

I used your Model Memo to “push back” and was invited to a meeting where I was told by HR and my Manager not to worry because what I received is not a PIP, but instead is intended to show that I am trying to be a better employee. It seems the situation is stable for now. Should I trust that?

Gretta W.
Queensland, Australia

Answer: Dear Gretta: For over 20 years I’ve been heavily involved in helping employees, worldwide, address Performance Warning and Performance Improvement Plans (“PIPs”). Take my word for it, PLEEEZE: A PEP is a PIP is a PAP is a POP, so long as it says, one way or another, what your “PEP” says. Do not let trust their unwritten assurances; don’t forget their written, decidedly non-assuring paper trail.

Take it from me, your Performance Enhancement Plan is a PIP, and don’t believe for one moment that it is not. Whether called a PEP (Performance Enhancement Plan) or anything else, it is a THREAT to your livelihood.

Here are seven points to keep in mind:
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New Manager? – Big Risks Ahead! Eight Signs to Watch Out For

Published on April 19th, 2017 by Alan L. Sklover

“The paranoid person is never entirely mistaken.”

– Sigmund Freud

ACTUAL CASE HISTORIES: Quite frankly, there are so many actual case histories of “New Manager Risk” that I could write an entire book on the subject. A large part of my law practice over these past 35 years has been devoted to severance, and I have identified five or six situations where we can almost expect our client to lose his or her job. Putting aside for the moment the “large-scale downsizing” category, the “New Manager” category is one of the most common “one-off,” or individual, job loss situations.

I often describe “New Manager Risk” this way: (1) new captain takes over the ship, (2) new captain is eager to show how much improvement she can bring about, (3) he thinks his best path to improvement is the hiring of a “new crew,” (4) she thinks that people she has known from other teams she has worked with will be very loyal, as well, and (5) one by one, the “old crew” are convinced, coaxed or coerced to “walk the plank.”

Sound familiar? I’d be surprised if it didn’t.

While I am confident everyone has seen or experienced this very scenario, I am absolutely certain that everyone will, sooner or later, come across it, themselves. Hopefully, when it happens, it will not happen to you.

LESSON TO LEARN: The lesson to learn here is quite simple: if you are assigned to a new manager, or a new manager is assigned to you, you need to be at least a touch extra vigilant, and consider taking extra steps to do all you can to keep your job. So, the first step is enhanced vigilance, the subject of this newsletter.

***Note that in coming weeks, we will write another newsletter about steps you can take to counteract “New Manager Risk” in order to keep your job. It will be entitled “New Manager? – Addressing the New Risks.” In the meantime, consider what events and circumstances you should look out for, as explained below.

WHAT YOU CAN DO: Here are eight things you can be on the lookout for if either you are assigned to a new manager, or a new manager is assigned to you:
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Performance Improvement Plan a Fraud? – Here’s 12 Clear Indicators

Published on December 28th, 2016 by Alan L. Sklover

“Corrupt politicians make the other 10 percent look bad.”

– Henry Kissinger

ACTUAL CASE HISTORY: As readers of this blogsite know, it is my professional opinion that at least 90% of Performance Improvement Plans (“PIPs”), also called Performance Enhancement Plans (“PEPs”), are fraudulent at their very core. You might be thinking “Gee, isn’t the word ‘fraud’ a little harsh? And might that “90%” be a little exaggerated?”

As an employment attorney of 30+ years, I don’t think the word “fraud” or the number 90% are one bit harsh or exaggerated, although I do appreciate that “fraud” is a “hot-button” word. It’s a serious word, not to be used lightly, and never where unjustified. But if the word is accurate, applicable, and appropriate, well, that is the word I believe should be used.

A fraud is commonly defined as “an intentional misstatement or mischaracterization of fact intended to induce action by another person to his or her detriment.” Fitting that description, I have found most Performance Improvement Plans are designed to (a) create a false record, to (b) intimidate, humiliate and infuriate employees, (c) to induce them to quit, get sick, or engage in misconduct, (d) to achieve their resigning or engaging in misconduct, all to (e) reduce headcount without severance or risk of lawsuit.

What SHOULD a Performance Improvement Plan be? Simple: a Plan to help the employee to Improve his or her Performance. Just like it is fraudulent to induce someone to buy a cat that is really a dog, so too is it fraudulent to call something a PIP if it is not a Plan designed to help an employee Improve his or her Performance.

Most often, a Performance Improvement Plan is an exercise designed and supervised by Human Resources to assist management in terminating an employee. It is a false “paper trail” to justify terminating an employee, or to induce an employee to resign instead of being fired, thus saving the employer both the expense of severance and risk of a potential lawsuit.

These days many employers are using Performance Improvement Plans to lay off employees – sometimes entire departments – by, first labeling each one a “performance issue” and an “unsuccessful PIP.” I know of one large law firm that seems to be doing this each week to lower headcount of younger associates without incurring “bad publicity.”

So how do you know if a PIP is fraudulent, and how can you demonstrate that to others?

LESSON TO LEARN: How does a doctor make a diagnosis of an illness? How do police determine if a crime has been committed? And how can an employee demonstrate to others that his or her Performance Improvement Plan is fraudulent? All in the same way: by (a) reviewing and sharing the available data, (b) identifying and describing its false nature, and (c) explaining how it is being used to create false conclusions.

The “available data” that shows a Performance Improvement Plan is fraudulent – of, if you wish, false, a misrepresentation or mischaracterization – is set forth in the PIP, itself. There are four general categories of such fraud, and within those four general categories – set forth below – a total of 12 “fraud indicators” you can use.

Identify these, describe them, and then share them with Senior Management when you “push back” against a PIP. By doing so, you will be far more likely to have all the leverage you need to either survive that Performance Improvement Plan, or get a fair severance package as a result of your doing so.

If your PIP is truly a Plan to help you Improve your Performance, then these “Indicators of PIP Fraud” should not be present in your Plan’s objectives, procedures, timetable, operation, mechanics or goals.

WHAT YOU CAN DO: If faced with a Performance Improvement Plan that you know to be unjustified to begin with, and then impossible to succeed in no matter how hard you try, push back by noting that is fraudulent. If the “fraud” word is too harsh for you, then use equivalent phrases such as “intentional misrepresentation,” “false and mischaracterizing,” or “intentional deception.”

Here are the 12 most common indicators of “Fraud by PIP,” and the particular words and phrases you can use to identify and describe them in your “PIP Push Back” memo to a member of your employer’s Senior Management:
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“Problem Not Yet Solved; What’s My Next Step?” Your Five Alternative Next Steps

Published on April 5th, 2016 by Alan L. Sklover

“One of the secrets of life
is to make stepping stones out of stumbling blocks.”

– Jack Penn

ACTUAL CASE HISTORIES: A very commonly asked question is this: “I have followed your suggestions, but it has not yet worked . . . What do I do now?

The writer usually explains that her email memo to management “pushing back” against a dishonest performance improvement plan (“PIP”) did not get her what she wanted. Or, his request for better terms of severance achieved only minimal results. Or, perhaps, her attempt to get a waiver for a non-compete agreement received no response. Or maybe, even, his complaint of discrimination was essentially ignored.

There are five simple “next steps” available in each of those problem situations, and others, too, that remain unsolved despite your best efforts. While choosing which “next step” among them is the best one for you, surely one or more of them is the wisest one for you. And, in fact, you can try all five if you wish.

What needs to be kept in mind is that there is no problem without a solution. And many different approaches can be tried to solve a problem. It might even be your second, third or fourth attempt to solve a problem that turns out to be the most effective.

LESSON TO LEARN: Maybe you did not immediately get the results you wanted to get when asking for removal of a negative reference from your HR file. Or maybe you were turned down in your first request for an investigation of your complaint of harassment. Or, maybe, too, your repeated complaints of unsafe working conditions were simply ignored. In each of these instances – and many others, too – you would likely be frustrated, demoralized, perhaps even angry.

As the simple saying goes, “Don’t get angry . . . get even.” Or, as we are reminded, “If at first you don’t succeed, try, try again.” Or, perhaps, bear in mind the adage, “There are more ways than one to skin a cat.” (My apologies to all of you cat lovers out there.) Don’t give up. Don’t get frustrated. Just keep going.

WHAT YOU CAN DO: Here are your five alternative next paths available to you. Coincidentally, each path forward ends with the letters “ate,” as do the words “navigate” and “negotiate.” Might it be pure coincidence?:
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“Performance Improvement Plans – Resign or Attempt? Choose the Third Alternative”

Published on February 3rd, 2015 by Alan L. Sklover

“Wise choices will watch over you. Understanding will keep you safe.”

– Proverbs 2:11

ACTUAL “CASE HISTORIES: Katherine, 53, a Logistics Analyst for an international freight-forwarding company based in Seattle, had received “Strong Performer” performance reviews for each of her last eight years. And just three years earlier, she had been selected as an “Outstanding Contributor” at the company’s national conference.

In light of a downturn in business due to a series of West Coast union slowdowns, Katherine thought her employer might initiate some layoffs. And, too, she expected her annual bonus might not be increased this year, as it had for six years in a row. But she sure didn’t see what was coming her way.

In early November, she was asked to attend a meeting with both her manager and an HR representative. “Most probably,” she thought, “I will be told of a potential promotion.” After all, she was surely seen by everyone as an “up-and-comer.” To Katherine’s surprise, she was handed a Performance Improvement Plan, or “PIP,” that said (a) her work was woefully inadequate, (b) she had to improve in 24 different ways, and (c) she had just 30 days to “make her Manager confident.” Nothing less than a curve ball from left field!

This is what Katherine was told: “You have a choice: resign now, which will look better in your HR file, and will look better to future employers, and we might even give you four weeks of severance pay. Your other choice is to take a chance and try to satisfy the PIP. But if you choose to take your chances with the PIP, and do not succeed, you will be terminated for poor performance, and denied any severance, in which case you will never be permitted to return to work for this company.”

Katherine saw the two alternatives given to her to be like “Either jump off a bridge voluntarily, or we will throw you off ourselves,” a kind of “devil’s choice,” in which both alternatives would inevitably be quite detrimental to her.

Fortunately, Katherine did not choose either of the two alternatives presented to her. She felt, instinctively, that she was being urged to do what her employer wanted her to do, and would be in its interests, but not in hers. Fortunately, she googled “performance improvement plan,” and came upon our blogsite and learned that there is, indeed, a third alternative when given a PIP: to respectfully and effectively “push back” at her Performance Improvement Plan.

Human Resources representatives and managers will not tell you that “pushing back” to your Performance Improvement Plan is an alternative available to you. Rather, they will try to convince you that you have only two alternatives, both of which are almost always bad for you. They try to limit your “vision,” restrict the agenda in your mind, and prevent you from doing what is often the best thing to do – for YOU.

What do we mean by “push back?” Simply put, to (a) respectfully questioning its facts, (b) reviewing the bona fides of its conclusions, (c) pointing out inadequate process or procedure, (d) suggesting improper motivations, and (e) requesting alternatives to the PIP and its probable consequences.

LESSON TO LEARN: In difficult times, layoffs and downsizing are often disguised as performance issues. Thus PIP’s are used to “thin the ranks without thinning the corporate wallet,” by denying customary severance. If you are given a Performance Improvement Plan, don’t be fooled, tricked or intimidated by being told that you have only two alternatives available to you: that is, (1) resign or (2) “give it a try.”

Imagine, for the moment, you went to a car dealer to purchase a particular model in blue. Imagine, also, that the car dealer had no blue cars in stock. Well, that car salesman would likely try to convince you that (a) they don’t make the model you want in blue, (b) the blue that your model is made in is not an attractive blue, (c) they made your car in blue, but the blue paint turned out to rust easily, or (d) they made so few cars that year in blue, that even if you can find one, it will cost you an extra $20,000. The lesson to remember is this: others will often try to convince you that your choices are limited to options that are good for them, and not good for you.

You surely do have other options, despite what you are told, and respectfully and effectively “pushing back” to the Performance Improvement Plan is surely the best one there is.

WHAT YOU CAN DO: If you are ever presented with a Performance Improvement Plan, if you think about it, the choices offered to you – and described as the only choices available to you – are not as good as the “third choice” not mentioned. Consider these eight thoughts:
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Alan L. Sklover

Alan L. Sklover

Employment Attorney
and Career Strategist
for over 35 years

Job Security and Career Success now depend on knowing how to navigate and negotiate to gain the most for your skills, time and efforts. Learn the trade secrets and 'uncommon common sense' of Attorney Alan L. Sklover, the leading authority on "Negotiating for Yourself at Work™".

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