Question: Hi, Alan, I’m so happy to find your blog. Finally there’s a resource available to the staff, who are usually in a disadvantaged situation, not like the management, who has the whole of corporate resources (HR, Legal, etc.) siding with them.

I’m currently 32 weeks pregnant now. I had an annual performance review with my boss last Friday. I got a “Fully Meets Expectations; Sometimes Exceeds,” but I was also told at the same time that I did not deserve that rating. So I was put on a Performance Improvement Plan, or PIP for short, at the same time.

Thanks to your Model Letter Library, I started drafting my “First Response to a PIP.” However, frankly speaking, all of these accusations and PIP thoughts have taken an unbearable toll on me, my health and my fetus. Over the weekend, my weight dropped 5 pounds! Can you believe that a woman in her third trimester loses weight?

I don’t know if it’s a wise thing to push back, considering this stress. Someone has suggested that I come up with a “Counter PIP” with objective, achievable goals. But I still don’t want to go through this set of weekly reviews in my last 8 weeks of pregnancy. What kind of evidence should I start collecting?

Best, Jodie
Rockville, Maryland 

Answer: Jodie, first of all, congratulations on your pregnancy! I’m sure many people join me in prayers for your safe and healthy delivery. Here are my thoughts: 

1. Above everything else – and I mean everything else – you must think first of your health and your baby’s health. Nothing comes even close. Let that be your one and only guide in what you do, when you do it, and how you do it. Nothing is as important, or even nearly as important as that one goal. Nothing can be permitted to put your and your baby’s health in jeopardy. And we all know: excessive stress can be quite, quite harmful to health.

2. Your performance going from “Meets/Exceeds Expectations” to “PIP” in one week is 100% illogical, and looks very much like Pure Pregnancy Discrimination to me. Think about it: how can someone be an extremely good performer and an extremely poor performer at the same time? When we see such illogical things happening, especially in Performance Reviews and Performance Improvement Plans, experience and common sense teach us that there is almost always another “real reason” for what is happening, and the PIP is nothing but an integral part of a fraud and attempted cover up of that real reason. In the law, a “false reason” is called “pretext,” and is, in itself, proof of a “wrong reason.”

3. My guess: your boss is hoping you’ll quit your job, so he can avoid keeping your job open for you during your maternity leave. It would seem to me quite likely that your boss – like many bosses in this situation – is getting nervous about doing without your services during your upcoming maternity leave. At this time, he may be starting to wonder if you will come back after maternity leave, and wonder, too, whether your having a little baby on your mind after you return to work will distract you if you do come back after maternity leave. THAT ANXIETY IS HIS PROBLEM, NOT YOURS, and don’t let it become yours, if you can. Your PIP seems to be interwoven with your pregnancy and impending maternity leave, in my experience, and from the information you have provided. In fact, your PIP seems to me to be evidence of your boss’s maternity-related concerns, and what would therefore be pregnancy discrimination.   

4. Can a friend, life partner, husband, or sibling help you carry the “stress-load?” No matter what stressful situation you face, having a helping hand carry some of the “stress-load” cannot hurt. Consider this possible way of standing up and pushing back at the PIP, without endangering your health and your baby’s health. Sure, no one can go to weekly update meetings for you, but someone can help you in drafting, sending and responding to emails or letters, and in “pushing back against your PIP, and in possibly filing discrimination complaints to HR, the CEO, the Board of Directors, or your state or federal Employment Rights Agency. (See my point 6, below.)  

5. Consider filing for a FMLA Leave of Absence. You likely qualify to take time off without pay in order to attend to your health and the health of your baby under the federal FMLA law. We have lots of info about FMLA on our blogsite.

We also offer a Model Letter entitled “Memo Requesting FMLA Info, Procedure, Forms” on our Model Letter section. To obtain a copy, just [click here.]

If you do request your employer’s FMLA info, procedures and forms, make sure you do it by email, and take home a copy of that email. Also, make sure your immediate boss knows of it, so that he may be held personally accountable for future acts of discrimination, harassment or retaliation.

6. Consider, too, filing a Complaint of (i) Pregnancy Discrimination, and (ii) Fraudulent PIP as proof of that Discrimination with HR, or appropriate federal, state or local Employment Rights Agencies. It seems to me that you have a valid case of pregnancy discrimination. While filing an official complaint of discrimination may seem “confrontational,” or “adversarial,” remember that your first concern is your baby, not your boss’s feelings.   

We offer a Model Memo to assist you in filing a Complaint of Discrimination with HR. To obtain a copy [click here.]

7. Yes, it may be a good idea to start collecting “evidence.” As to “gathering evidence,” the PIP, itself, is the strongest piece of evidence you might need. You might print out and take home copies of (i) your positive performance review, (ii) emails in which you have been praised for your work, and (iii) emails which show that your employer, in general, and your boss, in particular, are aware of your pregnancy and plans to take maternity leave. You might also ask around to find out if other female employees at your workplace have faced similar treatment when they became pregnant.

As to the idea of a “Counter PIP,” I have never seen that work. While it might, I would rather doubt it and, besides, why would it be needed if your Performance Review was positive?

Jodie, I hope this Answer, in itself, serves to reduce a bit of your stress by giving you a “plan of action” or possible steps to take to move forward with a healthy mind and body (or two of each, in your case!) Very best of luck in your final weeks before delivery, and in the delivery itself. You and your baby are now in my daily prayers. 

Best times ten,
Al Sklover

P.S.: You’ll soon need Baby Announcements!! 

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

© 2012 Alan L. Sklover, All Rights Reserved.

Question: Two months ago I pushed back against a Performance Improvement Plan using your PIP Ultimate Package materials. I didn’t use a lot of the legal terminology from your Ultimate Package in my rebuttal to Human Resources. This was an attempt to get HR on my side with the use of facts and timeline. I have not heard back from HR since I submitted my rebuttal.

Since then I was hospitalized due to high blood pressure and heart palpitations. I am on a FMLA leave of absence for the next 10 days, and then I’m scheduled to return to I-don’t-know-what.

I am planning on purchasing your Involuntary Resignation Model Letter. Should I first wait for a response from HR on my rebuttal?

S.S.
Florida

Answer: Dear S.S.: It’s near impossible for me to suggest to you what to do without knowing more of your facts and circumstances, or even what you wrote in your 16-page rebuttal. And even your email, above, raises several different issues. I will though do my best; here are some of my thoughts:               

1. It’s great to read you have stood up and pushed back to a Performance Improvement Plan. I salute you. From my experiences helping people with Performance Improvement Plans for almost 30 years, I know it is not easy for someone to “Stand Up and Push Back.” Though it’s not easy, it is almost always the best thing to do in the long run, for many different reasons. It can be stressful, that is for sure, but most people find doing nothing in response to a false and unfair Performance Improvement Plan to be even more stressful. As folksinger Joan Baez said, “Action is the antidote to despair.”

2. One thing you have done concerns me: It is almost always a grave error to try to “get HR on your side.” Members of our “blog family” know that HR is not “on your side,” is not meant to be “on your side,” and should not be “on your side.” HR works for management, and has a duty of complete loyalty to management. If HR was on your side, HR would not have placed you on a PIP in the first place. And HR is not the people who will decide how to respond to your PIP pushback: that decision will be made by “Decision-Makers.” The central idea behind PIP pushback efforts is to do just that: “push back,” not “cozy up.” I think you should have sent yours to a “Decision-Maker,” such as your boss, your boss’s boss, or your boss’s boss’s boss. Then he or she can send it to HR, but it’s better to get a Decision-Maker involved in the matter first.

For great info and insight, consider viewing our 12-minute Sklover-On-Demand Video entitled “Seven Timeless Truths About Human Resources.” You can do so by simply [clicking here].

3. Though you are on a FMLA leave of absence, you can still contact HR and ask “When will I be receiving a response to my PIP Response?” Knowing if and when you might be receiving a response should both (a) give you more data upon which to make an informed decision about what to do next, and (b) make you feel less anxious about making a decision. There is no reason to refrain from doing so.

4. Though you are on a FMLA leave of absence, you can still contact HR and ask “When I return, will I restart or continue in my Performance Improvement Plan, or has it been abandoned in response to my letter?” Knowing the answer to this question, too, should serve to (a) give you more data upon which to make an informed decision about what to do next, and (b) make you feel less anxious about making a decision. You have a very strong reason to support this request for information: it is necessary to calm you down, and reduce your high blood pressure and heart palpitations. If I were you, I would tell that to HR, and let them know that you need an answer for health reasons.    

5. While I know none of the facts about your PIP, and few of the facts of your medical conditions, I do know that, if your job has caused such stress that it has placed you in the hospital, it might be necessary to get out of that employment relation, and the sooner the better. S.S., if you lose your health, you’ve got nothing left. No job is worth experiencing such serious medical issues as you are. If things at work have, indeed, led to such serious ailments, then it would sound to me like “Involuntary Resignation” might be a perfect path forward for you.

As you know, “Involuntary Resignation” is a concept I invented, and usually enables employees to leave their jobs without necessarily giving up their rights to (a) unemployment benefits, (b) severance, or (c) legal claims to raise against employers. While I acknowledge that it is highly anxiety-provoking to be without income to support yourself and your loved ones, no one can deny that being ill or deceased doesn’t make supporting your family any easier. So, yes, S.S., it may be a wise thing to consider moving forward with an Involuntary Resignation. It’s not an easy decision, but one that – one way or the other – you will have to make.

For great info and insight, consider viewing our 12-minute Sklover-On-Demand Video entitled “Involuntary Resignation – Standing Up Without Giving Up.” To do so, just [click here].

If you’d like to read my newsletter by the same title, just [click here].

And if you’d like to obtain a Model Letter for Involuntary Resignation for your own adaptation and use, just [click here].

S.S., more than anything I hope that you quickly regain your health and vigor. That really has to be your number one goal. I think that figuring out the right path forward for you will contribute to that goal, and your starting to take action will move you even further along to health. My prayers are with you, and my bet is on you!! Go get ’em.

Best, Best, Best,
Al Sklover

  

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

© 2012 Alan L. Sklover, All Rights Reserved.

Question: Hi, Alan. I work for a non-profit in Baltimore. Late last year my wife and I added a baby girl to our family. I used the federal Family and Medical Leave Act (“FMLA”) and stayed at home with my daughter for 12 weeks.

When I returned I was assigned to a very different position, and because of that I filed a Complaint with the federal Department of Labor (“DOL”), which handles FMLA violations.

I have spoken to HR about several issues with my immediate supervisor after trying to resolve things with her, with no success. Since then, this supervisor has coerced others at my work to spy on me, to create false accusations, and treat me with absolutely no respect at all.

I was recently placed on a Performance Improvement Plan (or “PIP”) which requires that I improve within 30 days, or face termination. The PIP charges me with such subjective things as “not working with the team” and “following staff when they go to lunch.” I responded to the PIP, in writing, in which I respectfully pointed out that (a) these allegations are so subjective that I can’t figure out what, exactly, I have to do to “improve,” and (b) they are not indications of “performance” of my job. For two weeks, I have not heard back. HR contacted me and said that they do not have a policy of investigating claims of FMLA-related retaliation.

I am considering going to our organization’s Board of Directors and/or hiring an attorney. What do you think?

Mike
Baltimore, Maryland

Answer: Mike, it seems to me that you have three options, and that you should take them in this order:

1. File a Supplemental Complaint Naming Your Supervisor:  First, I’m not sure whether or not you know it, but corporate managers and officers may be personally liable for interfering with FMLA rights, and retaliating against those who make use of those rights to help take care of family members. For this reason, I believe your first step would be to supplement your Complaint filed with the federal Department of Labor (often called the “DOL”) by adding a second complaint for retaliation against your immediate supervisor.

2. (PERHAPS) Send Copies of Your Original and Supplemental Complaints to the Board: I also suggest you send copies of your Complaints to the Members of the Board of Directors of your employer and ask them why the organization has no policy of investigating claims of FMLA-related retaliation. Tell them that you believe it is (i) unwise, (ii) probably a violation, itself, of the federal FMLA to refuse to investigate a claim of retaliation, and (iii) suggestive of insensitivity of the organization to the importance of the FMLA law.

HOWEVER, do not do so until you have asked HR – in an email – whether or not your contacting the Board Members about this is permitted, or prohibited. In some organizations, directly contacting the Board of Directors is considered violating the “chain of command,” and for this reason a reason to be fired. Contact the Board Members only after you have written (email) proof that your doing so will not result in your being fired for that reason. Remember, you are already on a Performance Improvement Plan.

3. Surely, It is Time to Consult an Employment Attorney.  From the information you have provided me, it seems that it is time to have professional guidance in each step forward, or actual legal representation in taking those steps. You can probably locate experienced employment attorneys in your locale by contacting your local bar association, or your state’s bar association, and requesting referrals.

Sadly, employers sometimes feel “put out” when employees exercise their FMLA rights. Perhaps even more sadly, I would not be surprised if your supervisor feels that men do not need to take time off for “paternity” leave, as you have. It is your right to do that – and to the ultimate benefit of your new child. The law says that time with both mothers and fathers helps children, and so has provided for men, too, to have time off when “new ones” arrive on the scene. My favorite saying about children is this: “Do you know how they spell ‘love?’ T – I – M – E.”

Of course, don’t stop trying to show, by emails, that you are doing your best to comply with the Performance Improvement Plan.

If you would like us to refer you to experienced employment law counsel in your home town [ click here.]

Good luck in moving forward, and in defending yourself. I really mean it.

Best, Al Sklover

 
©  2010 Alan L. Sklover, All Rights Reserved.

Question: I was placed on a Performance Improvement Plan (“PIP”), and tried to do all the work and meet all the deadlines. I was having difficulties.

Before the end of the time period I was given to improve (60 days), I was diagnosed with something called “Attention Deficit and Hyperactivity Disorder,” or ADHD, and I am being treated for it by a doctor. The doctor says that my ADHD contributed (at least) to my difficulties. At the end of my 60 days, I was told by my supervisor that I was improving, but that I was unsuccessful in my Performance Improvement Plan.

I have 18 years of successful Performance Reviews, and only three years before my retirement. What should I do?

        Martha           
        Weston, West Virginia

Answer: As I hope you have seen, we have several newsletter articles, answers to questions, and even a video on this subject, free for your viewing. I hope you will take the few minutes you may need to help yourself.

I suggest you consider preparing a “PIP Protest Memo,” a memo, to be sent by email, to a high-level executive, and the Head of HR, questioning the validity of the Performance Improvement Plan.

If you would like to obtain a “model” memo to help you respond
to your Performance Improvement Plan [click here]

It is crucial that you mention in your “PIP Protest Memo” your new ADHD diagnosis, which even your doctor believes may be responsible for your not achieving success in the Performance Improvement Plan.

ADHD is a recognized disability, especially if you have been placed on medications. Request, as an “Accommodation to My Disability” a new, different, simpler job description, and a new, different, simpler Performance Improvement Plan, both to be reviewed by your doctor. We have had clients diagnosed with ADHD who have had their employers – as a necessary LEGALLY REQUIRED “accommodation” directed by their doctors – give them one task at a time, instead of multi-tasking, which is often harder to address for those with ADHD.

By the way, it would not be a bad idea to mention how close you are to retirement, to both (a) remind your employer that your “accommodation” will not be necessary for that long, and (b) you may suffer significant harm – inability to get reemployed and potential loss of pension – if you are unfairly, improperly and ILLEGALLY pushed out of your job in this way.

The federal law, and possibly the law in your state, too, requires that employers provide “reasonable accommodations” to those with diagnosed disabilities. This is an important factor in your matter, and I strongly urge you to quickly address the situation as I have suggested above. 

If you would like to obtain a model letter to assist you in making a Request for Accommmodations, [click here].

I hope this helps, I really, really do.

          Best, Al Sklover  

 
© 2010 Alan L. Sklover, All Rights Reserved.

Question: Alan, the first day back from a maternity leave I was told I would be put on a Performance Improvement Plan (or “PIP”). The reasons given were unsatisfactory performance and tardiness. The allegation of “tardiness” came from the day before I took off for maternity leave, I was late for about an hour due to a painful contraction, which I explained to my manager.

I’ve been on this job for about two years. The first year went well; I was given a positive review and a good bonus. But this year – while I was pregnant – my boss has been totally unreasonable. I was assigned tasks for which I had no background. While I’ve never committed any mistakes, or missed any deadlines, my boss has been orally and through email attacking me.

As soon as I returned from maternity, she placed me on a PIP, and has been terribly hostile. I resigned three days after that, although I’m still employed at this time. My plan is to submit a dispute letter to HR, reporting this as pregnancy discrimination and asking for a retraction of the PIP, and ask HR to agree with me that my resignation is truly involuntary, so that I can collect unemployment insurance. What should I write in the letter?

PS: Thank you for your helpful tips!

Puzzledajob
Fairfax, Virginia

Answer: Actually, you’ve done a pretty good job of doing that in the short memo you’ve written to me.

That being said, I suggest you try to enhance it a bit:

(a) give specific descriptions of the hostility;
(b) name people who may have witnessed it;
(c) provide copies of the attacking emails;
(d) point out the ways your boss has made your efforts to work impossible; and
(e) perhaps most of all, tell HR that your tardiness was due to a contraction, and YOUR BOSS KNOWS THAT TO BE THE CASE. (That last one is a “doozy”; to me, what your boss did in that instance is nothing short of repulsive.)

It’s also important to show that you were doing so well until you became pregnant. Your memo should be sent by email, and should go to a top executive in your division, as well as the top HR person in the division, as well.

Just a reminder: Review our Newsletters and Q&A’s on Pushing Back at Performance Improvement Plans and even our Video on the subject. You can do so by [clicking here].

We also offer for a nominal fee a Model Involuntary Resignation Letter on the “Private Library” section of our blogsite. To obtain a copy [click here].

Your memo, and any supporting information and emails, may also be saved for submission to the Virginia unemployment agency, in case your employer contests your application for unemployment benefits. Likewise, you might consider showing your memo and its supporting information and materials to an employment attorney during a consultation, which I suggest you consider IF your employer does not treat you well after receiving your memo. I’m not a gambler, but I would be willing to bet you will end up collecting unemployment, and perhaps with a severance package, as well.

Best, best, best luck – with your efforts, but especially with your new baby!! As I always say (unless one of my kids just made me crazy), “Kids are the best part of life.”

Oh, yes, I would love it if you might report back to us how it goes – readers would love to share your experience.

Hope this helps; I really do.

Best, Al Sklover

 
© 2010 Alan L. Sklover, All Rights Reserved.