How to Respond Archives

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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“Negative Performance Review without Warning; Is There a Case?”

Published on April 17th, 2013 by Alan L Sklover

Question: Hi, Alan, 

I am a senior individual contributor at a big company. Last year was my first year there. I applied for a job in one group but got assimilated into another group though both groups are in the same organization. As such, I never got a different job description, and none of my three different managers during the 12 months ever sat down with me to explain to me my job expectations. 

I successfully completed all of the projects they assigned me, and then at annual performance review time I was given a “less than satisfactory” rating. They said that I am a senior resource and should have done more and should have known to do more, that is, should have asked for more challenging projects. I said it was unfair that they never mentioned any issues to me during the entire year, and never set proper expectations. 

They refused to change my rating and I am thinking of approaching HR and perhaps even taking legal action if warranted. Do I have a case here? 

Your advice and insights are much appreciated.

Johnny
Silicon Valley, California

Answer: Dear Johnny: Your question is, for me, a really good one for several reasons: (a) lot of people ask it (or a version of it), (b) it brings up some pretty important issues of law, negotiation and working wisdom, and (c) gives me a chance to discuss my new idea of a “PVP.” Here we go:            

1. What I see here is more a Failure of Management than an Employee Performance Problem. Johnny, what you describe for me is a series of errors by your managers that culminated in a failure to derive proper value from an obvious valuable employee. The “symptoms” of this “illness” include: (a) lack of clear job description, (b) a revolving door of managers, (c) no warnings regarding deficient performance, and (d) an understandably – though unfortunately – dejected employee. The portrait you paint in your letter is exactly the portrait so many other of my blog visitors paint, but yours is a relative masterpiece. 

The last “symptom” of this kind of management failure is scapegoating of the employee, that is, “It is your fault.” Poor management is not your fault, should not be blamed on you, and this dishonest performance review is just another example of it.   

2. I don’t think an appeal to Human Resources – at least the kind of appeal you are contemplating – is a viable alternative. Now, don’t think I am an “HR-hater,” because I am not. In fact, I counsel and represent many HR professionals, and they are overall a great bunch of people who are often “between a rock and a hard place.”  

That said, HR’s job is to assist management in its “acquiring, maintaining and eliminating human resources” – who are much more appropriately described as “employees” or “human beings.” So, you can expect, and must expect that HR representatives, while of the best intentions, will likely side with your managers, who are, in effect, their clients. Any other expectation on your part – that they are “enforcers of fairness” or the “employee’s friend,” would just not be reasonable.   

My “blog family” all know that I am a big believer in “standing up and pushing back” at incorrect Performance Reviews and Performance Improvement Plans (“PIP’s”). It’s just that I think it ought to be done in the most effective way.  

3. I truly do not believe you have a “legal case,” at least not now. When lawyers are asked the question, “Do I have a case?” they think of two things: (a) “Is there an applicable legal theory to use?”, and (b) “Are there any presently-existing financial damages?” While in these circumstances we might use the legal theories of breach of contract, misrepresentation or fraud, all of them in this circumstance would be something of a “stretch.” Additionally, at this time there are no identifiable or quantifiable financial “damages” to sue for.

Should you be terminated as a result of this dishonest Performance Review, my view of your “Case” would be that it is not a “stretch,” but may well be on solid legal ground. I would be even more inclined to say you have a legal case to pursue if you were fired on the basis of this Performance Review after you rebutted it. 

Not having a “legal case” surely does not mean that you do not have a “negotiating case,” or that all is lost. I enthusiastically encourage employees who have been subject to false, fraudulent, incorrect or improperly motivated performance reviews, or performance improvement plans, to “push back” in a kind of negotiating. There are many articles, newsletters and videos on my blogsite that explain “What to Do and How to Do It“™.     

4. Your first path forward should be to “Push Back” to a senior member of management, not HR. The job of Human Resources is not to provide fairness or truth, but to support management in its “management” of “human resources.” For this reason, an appeal to Human Resources is not the way I suggest people in your circumstances approach this problem. 

Instead, I suggest you take your “appeal” to a “Manager of your Managers,” that is, someone higher up the “food chain” of corporate life who can, and hopefully will, tell HR to resolve your concern. If HR is left to its own devices, it will almost never disagree with the managers who they, in effect, serve and sometimes even report to. 

Your most attractive path forward is a two-step approach: providing the “Manager’s Manager” with both (a) a strong Rebuttal, but also (b) what I call a Proven-Value-Presentation (“PVP”), which is the opposite of a Performance Improvement Plan (“PIP”).  When employees are given unfair and dishonest poor Performance Reviews, the next step in the unfair and dishonest process that often takes place is a Performance Improvement Plan (“PIP.”) In a vast majority of PIP’s, I am sorry to say, employees are just further unfairly reviewed, compounding the unfairness by using the first unfair Performance Reviews as “evidence” in the next unfair step, and then, sooner or later, giving the employee the unfair and dishonest option of “resign or be fired.” 

I wish it was not the case, but it is so often the case that these measures are undertaken to eliminate “positions” and “overhead” – what I prefer to call “working people” – without severance, without unemployment assistance, and without basic human dignity. 

5. The first step in standing up for yourself is a Performance Review Rebuttal, which seeks to respectfully but with conviction “set the record straight.” Such Performance Review Rebuttals should be addressed to a Senior Manager – not HR – and should address and correct (a) false information, (b) things taken out of context, (c) minor items blown out of proportion, and (d) improper motivations, such as retaliation, discrimination or fraudulent cost-cutting. 

We offer a Model Memo entitled “Model Performance Review Rebuttal,” you can adapt to your own facts and send to a Senior Manager to respond to the unfair and dishonest Performance Review you’ve received. It shows you “What to Say, and How to Say It,”™ just [click here.]

6. Recently I’ve starting using a second – more assertive – step with my clients, an idea I call “Proven-Value-Presentation.” My idea of a Proven-Value-Presentation, or “PVP,” is the functional opposite of a PIP: its purpose is to prove the employee’s value to the organization, to show that the “review of performance” must be faulty. 

This is the basic idea behind my idea of Proven-Value-Presentations: If clients are happy, if sales are up, if colleagues are pleased, if subordinates are motivated, if costs are down, if quality is applauded, if profits are rising, and if feedback is glowing . . . could performance possibly be poor? A PVP does not have to be formal, but should be in writing, and sent by email, as should all important workplace communications. 

These two steps are available to you, they are the most effective responses to receiving an incorrect performance review, and also are “balanced” in that they (a) point out and address the wrong, and (b) exhibit and emphasize all that is right. 

Johnny, I hope this addresses your concern, and gives you some sense of your options. Valuable employees should not be lost due to management failures. Instead, the “record” should be corrected, to the betterment of everyone’s interests. 

My Best to You,
Al Sklover 

P.S.: One of our most popular “Ideal Packages” of forms, letters and checklists is entitled “Ultimate Performance Review Package” consisting of three Model Letters: Before Review, Enhancing Your Chances of a Positive Review, and Two After Review, one Requesting Rebuttal Forms and Procedures, and one Model Rebuttal to Performance Review, plus our 141-Point Guide and Checklist for Performance Review.” To obtain a complete set, just [click here.] Delivered by Email – Instantly! 

Help Yourself With
These Unique PERFORMANCE IMPROVEMENT PLAN (PIP) Materials

PIP 1: Model Response to Receiving a PIP
PIP 2: Model Second Response if Your First Response Does Not Work
PIP 3: 152- Point Step-by-Step Guide and Checklist for a PIP
PIP 4: 3 Memos Seeking Feedback of Clients, Customers, Colleagues for Use in PIP Pushback
PIP 5: Final Memo to Delay PIP Conclusion to Continue Job Search
PIP 6: After Successful PIP Pushback, Suggesting Positive Next Steps

[ Click Here ] and Go to Section "H"

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2013 Alan L. Sklover, All Rights Reserved.

“Followed your PIP method. Didn’t work. What next?”

Published on November 28th, 2012 by Alan L Sklover

Question: I received a performance improvement plan, and purchased your “Model Letter to Push Back at a PIP.” I followed the formula set down in the template letter with credible arguments. 

However, my employer’s CEO refused to withdraw the performance improvement plan. 

What should I do next?

Jane
Washington, D.C.

Answer: Dear Jane, I am sorry you were not successful in your “push back” at your performance improvement plan. Your question – What Do I Do Next?– is entirely appropriate, and not uncommon. Here’s my best response:   

1. Unfortunately, there can never be any guarantee of success in anything we do, and that includes negotiating. Whether it is a doctor trying his or her best to cure an illness, a plumber trying his or her best to fix a leak, or a negotiator trying his or her best to change the behavior of another person or group of people, there is simply no real way we can guarantee success. The only thing that I guarantee people is that the method we use in dealing with a PIP is  the best method there is anywhere. And the only thing people can guarantee themselves is they did their best in applying the method. After that, as the saying goes, “In life, there are no guarantees.” 

2. But, wait: are you overlooking a very important kind of “success” when pushing back on a performance improvement plan, that you might just have achieved? In your note to me, you expressed that your employer “refused to withdraw the performance improvement plan,” and you seemed to equate the CEO’s refusal with complete failure in your efforts. In fact, you might have achieved an important kind of success, but not have noticed it: remaining employed, both for now and possibly for a long, long time. Let me explain:  

You see, it is quite possible that, while your employer has not totally retreated and withdrawn your PIP, your efforts may have been successful in convincing your employer that, if it does terminate you on the basis of the PIP, you will again speak up in your defense, and even possibly claim “retaliation for standing up for honesty.” Your CEO may not have wanted to embarrass his HR Director, or even admit in any way that his or her staff made a mistake. But you may have made a great – and valuable – impression. 

It’s even possible that you will now be treated with extra care, extra respect and extra deference because you have shown yourself to be a person with (a) know-how, (b) courage, and (c) self-reliance, let alone “chutzpah,” as my grandmother would say. Don’t laugh, but you may now be considered a person worthy of being on the “a-team.” Yes, a person with the guts to gain glory.  

Bear these things in mind: showing yourself to be a “stand-up person” might have achieved for you success of a very special and significant kind, far greater than you had imagined.  

3. People who have not achieved what they define as “success” in workplace navigating and negotiating generally have three steps available to them:  

(i) First, you can momentarily accept “lack of success,” at least for now. Not every battle is won. Even championship teams lose some games. Don’t confuse “losing a battle” with “losing the war.” Each day is a new day, and an opportunity to start again. So long as the sun comes up, and you are alive, there is hope, and where there is hope, there is great opportunity for success. As we often say, “Count your blessings – they are far greater than you might imagine.” Or consider that marvelous Irish saying, “Get down on your knees and thank God you are on your feet.”

(ii) Second, you can “go higher.” Your note to me indicated that you have gone as high in your company as its CEO. That suggests to me that you have not yet gone to the Board of  Directors, and that step can also be effective. While I must caution you that, at least in some companies, that could be viewed as “over the line,” I don’t think I ever saw an employee’s report of fraud – which is what so many performance improvement plans are – to a Board of Directors ever result in a retaliation to the employee. It just seems to be something like “Don’t fire her now, or it will look like the Board Members are, themselves, retaliating.” I have seen many “PIP appeals” to the Board of Directors, sometimes to their Audit Committee members, be very effective. Don’t ignore it as an option.

(iii) Third, you might consider hiring legal counsel, although most attorneys don’t know what on earth to do when it comes to performance improvement plans. In workplace negotiating, if (i) accepting the situation, and (ii) going higher, don’t work, we usually consider (iii) bringing in legal counsel. This is tougher with PIP’s than in other issues because attorneys, including employment attorneys, generally say, “There is nothing I can do” when it comes to PIP’s, and that is most unfortunate.

Why that is, I don’t know for sure. I think it may be because so many attorneys are simply not client-oriented, not creative, not caring or not crafty enough to see that a fraud is a legal concept, and it applies to dishonest performance improvement plans. Also, so many attorneys think “Well, I can’t take this to court, and so it is not a lot of money for me, so who cares?” Sad. Pathetic. But true.

Recently, someone obtained a list of attorneys from our blog’s Local Attorneys Service, and none of the attorneys – all experienced employee-side employment attorneys – was willing to help out. I’ve seen that happen so very often. What beguiles me is that, if treated with care, creativity, craftiness and client-focus, people with PIP problems are an abundant source of legal work, at a time so many attorneys are having grave financial difficulties. 

But, if you can find the right kind of attorney, retaining legal services in this regard is an option.

4. “Staying Put for Now” is not the same as “Accepting the Status Quo Forever.” I hope you won’t view “staying put for now” as “accepting the status quo forever,” for they are entirely different perspectives. The first perspective is one that armies refer to as “tactical retreat,” that is, stepping back and regrouping, treating your wounds, and preparing to go forward another day. The second perspective is tantamount to “unconditional surrender.”  

“Staying put for now” is actually grounded in faith – faith in yourself, faith in your abilities, faith in your perseverance, and faith in your future. Faith is a power that cannot be underestimated, and rarely if ever defeated. As the saying goes, “Faith will get you through times of famine and drought, but even the greatest riches and power can’t get you through times of no faith.” Walk with faith, and you’ll go far. 

5. Which of these steps to take now, and perhaps even later, is for you to choose, and should be viewed not as a dilemma, but rather as a challenge. I hope you will view “what to do next” not with trepidation but instead as a test of your judgment and inner strength. Most people try to avoid situations of significant choice; few look for them. But those who do face forward into critical decisions on a regular basis are generally those who grow by them, with them, into them, and from them. This is the real stuff that separates “the rocks from the rocket ships.” Don’t dwell, and  don’t dawdle;  instead demand what is rightfully yours. Perhaps now, and perhaps later, but I assure you, if you stand up for yourself, in the long run you’ll never look back with regret.  

I hope this helps, Jane, and I wish you nothing but the best in going forward. Thank you for writing in, and being someone who is trying – at least trying – for that is what we truly need more of. My hat is off to you!  

My best to you,
Al Sklover

P.S.: New! For those who really, really need their employment-related questions answered, we now offer “Personal & Direct” recorded responses to your Questions, by Al Sklover, sent to you by email, that you can replay as many times as you wish. Interested? Just [click here]. 

Help Yourself With
These Unique PERFORMANCE IMPROVEMENT PLAN (PIP) Materials

PIP 1: Model Response to Receiving a PIP
PIP 2: Model Second Response if Your First Response Does Not Work
PIP 3: 152- Point Step-by-Step Guide and Checklist for a PIP
PIP 4: 3 Memos Seeking Feedback of Clients, Customers, Colleagues for Use in PIP Pushback
PIP 5: Final Memo to Delay PIP Conclusion to Continue Job Search
PIP 6: After Successful PIP Pushback, Suggesting Positive Next Steps

[ Click Here ] and Go to Section "H"


 

Repairing the World –
One Empowered and Productive Employee at a Time ™

© 2012 Alan L. Sklover, All Rights Reserved.

“Should I respond in my “PIP Meeting” or after, in writing?”

Published on April 1st, 2012 by Alan L Sklover

Question: Dear Alan: I have completed 10 years of service for my employer, during which I have met all goals and targets, and, in fact, have overachieved. The proof is that I was promoted repeatedly through the years and given performance bonuses and stock as rewards.

Now, under new management, I am being hauled in for a Performance Improvement Plan (“PIP”), without being really told what the issues are.

In contesting the facts, should I do it during the PIP Meeting, or am I OK to take down the issues and respond to my manager that I will write a formal response contesting each point. Thank you for your advice.

Preeti
Sydney, Australia

Answer:Dear Preeti: It is very much preferable that you respond afterwards, in writing, for these five reasons, among others:

1. Responding during the PIP Meeting takes your attention away from listening and taking notes. I often say that, in PIP Meetings, the employee has three “jobs”: (a) Don’t show emotion; (b) Don’t make any commitments; and (c) Gather as much “data” as you can, which is done by (i) listening carefully, (ii) asking questions, and (iii) taking notes, because “the more data, the better the decision.” Your responding to what is said and to what is written at the PIP Meeting can make your gathering “data” at the same time quite difficult.

2. Responding during the PIP Meeting does not give you time to think, analyze, or assemble information. In general, but especially when it comes to PIP’s, I encourage people to communicate “mindfully,” which includes carefully, thoughtfully, deliberately and with your “audience” in mind. Mindful communications are the most effective. Communicating mindfully is very hard in a PIP Meeting, when you may feel upset or angry, have not had a chance to ponder what you’ve been told, and with the utmost of care. You can communicate more mindfully after time, after thought, and in an email which allows you to carefully choose – and change, if necessary – your choice of words.

3. Responding during the PIP Meeting can be mistaken or mischaracterized as “adversarial,” “contentious,” or – especially for women –  “shrill.” Over the years I have noticed, time and again, that when you speak people can forget what you said, remember different things than you actually said, lie about what you said, and describe the way you spoke – or even used your hands while speaking – in negative ways. And, too, when people hear something they don’t like hearing, they tend to get upset, even if what was said is entirely honest and softly spoken. Sadly, I have also observed that women are more vulnerable to such mischaracterizations because when a woman speaks forcefully and effectively, she is often described as shrill, because of societal preconditioning to expect women to speak softly. This is another reason to respond to a Performance Improvement Plan in an email, where such mischaracterization is almost impossible.

4. Responding during the PIP Meeting leaves no permanent record, while responding in an email does. When you speak words, air comes out of your lungs, through your vocal chords, and then into the air. Unless the meeting is tape recorded, there is simply no record of what was said, how it was said, to whom it was said, and in response to what was said. Ouch! People who communicate the truth always prefer to have a record of what, exactly, and how, exactly, it was communicated. That’s another reason I much prefer email responses to Performance Improvement Plans over spoken responses. Email is permanent; email is accurate; email is your friend.

5. Responding after the meeting, in an email, gives you control over to whom your response is transmitted. I am an advocate of “bringing leverage right to the decision maker.” Quite often, PIP Meetings include an HR representative, and maybe even a manager, but not someone who has the authority to direct that the PIP be withdrawn. That decision maker is the person to whom you should direct your PIP Response. You probably can’t do that at your PIP Meeting; you probably can do that in an email.

Preeti, as you probably know, we offer both a Model Letter for “Pushing Back” to a Performance Improvement Plan, which you can obtain by [clicking here], as well as an “Ultimate Package of Materials to Push Back at a PIP,” which includes a 152-Point  Guide and Checklist to PIP’s, which you can obtain by [clicking here].

You might also enjoy watching our Sklover Video On Demand entitled “Performance Improvement Plans – How to Respond.” You can do so, for free, by simply [clicking here].

Preeti, after 10 years of superior performance, you would think that new management would see your significant value and appreciate it. Their failure to do so is their failure, not your own. I hope and pray you get through your PIP, and whether or not you do, that you end up working for employers who both appreciate your good efforts, and act as if they do, as well.

My best to you,
Al Sklover

Help Yourself With
These Unique PERFORMANCE IMPROVEMENT PLAN (PIP) Materials

PIP 1: Model Response to Receiving a PIP
PIP 2: Model Second Response if Your First Response Does Not Work
PIP 3: 152- Point Step-by-Step Guide and Checklist for a PIP
PIP 4: 3 Memos Seeking Feedback of Clients, Customers, Colleagues for Use in PIP Pushback
PIP 5: Final Memo to Delay PIP Conclusion to Continue Job Search
PIP 6: After Successful PIP Pushback, Suggesting Positive Next Steps

[ Click Here ] and Go to Section "H"

Repairing the World –
One Empowered and Productive Employee at a Time ™  

© 2012 Alan L. Sklover, All Rights Reserved.

“Seven Good Reasons ‘PIP-Pushback’ should not be by an Attorney”

Published on January 4th, 2012 by Alan L Sklover

Question: Should I write my own response to a Performance Improvement Plan (“PIP”), or have a lawyer write it? Which would be more effective?  

Ken
East Bridgewater, Massachusetts

Answer: Dear Ken: Thanks for what I see as a truly fascinating question. I’ve probably worked with clients on more PIP’s than Santa has delivered toys, and my answer is unquestionably “Pushback from an employee is almost always better than from an attorney.” Here’s my Seven Reasons Why:           

1. Performance Reviews and PIP’s are still commonly considered “internal” in nature, and issues that many employers will not discuss with “outside” attorneys. Performance Reviews and PIP’s have historically been considered “internal” affairs, outside the usual scope of “outside attorneys.” Indeed, I have seen employers say, in different words, “Who are you to come in here in this matter? It is not a legal concern.” It’s only been a few years now that the worldwide “epidemic” of  PIP’s has appeared, and been used in cynical fashion to defeat employees’ rights, interests and earned compensation by intimidation, humiliation and insinuation. I’m certain that, in a few years, after PIP-related lawsuits have come into the Courts, attorneys being involved in these matters will be commonplace. But not yet.    

 2. Very few lawyers have any real experience with Performance Improvement Plans. I really can’t tell you all of the reasons why, but lawyers almost universally say, “Oh, PIP’s are nothing ‘legal,’ and there is nothing I can do about them.” As a lawyer, myself, I think it’s because lawyers are not taught anything about PIP’s in law school, so they don’t think there is anything “legal” they can do about them. Dealing with PIP’s takes creativity and ingenuity, something most lawyers don’t seem to exhibit in abundance. And because most lawyers don’t want to get involved in things that can’t make them a lot of money, most lawyers don’t even want to get involved with PIP’s. Most attorneys view PIP’s as “If I can’t sue, I don’t do.”        

3. If a Pushback Letter to a Performance Improvement Plan comes from an employee’s attorney, it gets sidetracked to an employer’s attorney. A primary purpose of “pushing back” to a PIP is to create the thought in a supervisor or manager, “Oops – I just got caught in a scam. I’d better withdraw this PIP.” If the “pushback letter” is addressed BY an attorney, it will be forwarded TO an attorney, and will make the supervisor or manager feel “Great, I’m off the hook. This is now a problem for Legal, not me.”  

4. Very few lawyers understand negotiation; most try to prevail at what we call “testosterone tournaments.” Sadly, very few law schools offer courses in negotiation, and those law schools that do offer instruction in negotiation usually limit it to one elective course. PIP “navigation” and negotiation require intuitive and sensitive movements, and are better accomplished by people who know the facts, know the personalities, and have a sensitivity to the interpersonal dynamics at play. Attorneys are “outsiders” without “insiders’” sensitivity to these things. Lawyers almost always resort to “I can outsmart you,” “I can out-yell you” and “I can out-litigate you,” what we in our firm refer to as “testosterone tournaments,” which are  profession-specific, and gender-neutral. Ineptly, most attorneys seem to mistake their “testosterone tournaments” for the processes of navigation and negotiation.

5. There is something powerful and wonderful when an employee who has never before stood up for herself or himself now does so in a professional and effective fashion. I’ve seen it many times, and it is a life-changer: when an employer’s senior management and Human Resources Director say, in wonderment and hushed tones, “I didn’t think she had this ability in her.” It is the equivalent of thinking “This is someone I had better not mess with again.” That can happen if you do a good job standing up to a PIP; it won’t happen if you hire an attorney to do it for you. And the most magical thing is the employee feels “Hey – I can do this,” making him or her a newly inspired, confident and effective professional person on a going-forward basis.

6. If you do use an Attorney for a PIP, use him or her initially in a “Ghost” Capacity. Initially I suggest use of an attorney for a PIP only in a “ghost capacity.” By this, I mean as a counselor on truly legal matters, as a “sounding board,” as a drafter if they can keep “legal-sounding” words out of the picture, and perhaps as a “just in case” professional in case things don’t go the way you hope.

We offer either a Model Letter to Help You Push Back at a PIP, or our Ultimate Package of Model Letters, Memo’s and a detailed Checklist for Pushing Back at a PIP. If you’d like a copy, simply [click here.]

7. If your own efforts to stand up to a PIP don’t work, then you can “bring in the infantry.” Finally, use of an attorney in PIP disputes is better suited as a “second bite of the apple.” If your own efforts at defeating a PIP aren’t successful, well, that is the time to consider bringing in “the infantry.” Use a lawyer for counsel at first, and then only representation when truly necessary. It’s always better to try to help yourself, and doing so itself is a building process. As the old saying goes, “If you chop your own wood, it warms you twice.”  

Thanks for submitting your question, Ken. I truly hope these thoughts – and the other materials on our blogsite (including our free YouTube video) about dealing with PIP’s – are helpful to you. Thanks for writing in, and thanks, too, for watching our YouTube videos.  

Best,
Al Sklover

Help Yourself With
These Unique PERFORMANCE IMPROVEMENT PLAN (PIP) Materials

PIP 1: Model Response to Receiving a PIP
PIP 2: Model Second Response if Your First Response Does Not Work
PIP 3: 152- Point Step-by-Step Guide and Checklist for a PIP
PIP 4: 3 Memos Seeking Feedback of Clients, Customers, Colleagues for Use in PIP Pushback
PIP 5: Final Memo to Delay PIP Conclusion to Continue Job Search
PIP 6: After Successful PIP Pushback, Suggesting Positive Next Steps

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© 2012 Alan L. Sklover, All Rights Reserved.


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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