Before Negotiating 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:
Read the rest of this blog post »

FMLA – Great Tool to E-x-t-e-n-d Employment

Published on March 1st, 2016 by Alan L. Sklover

“ The cure for anger is delay.”

– Seneca

THREE BRIEF ACTUAL CASE HISTORIES: (1) Aquilino was a well known agricultural economist employed by an industry trade organization in Washington, D.C. His work visa was sponsored by his employer, and by the terms of his visa, if he was no longer employed by his employer, he and his family would have to return to their home country within ten (10) days. After a new Executive Director was hired who did not seem to be a “fan” of his, Aquilino had concerns that his position was insecure. Losing his job would entail Aquilino and his family having to depart the U.S. almost immediately. Aquilino and his family, however, wanted to remain in the Washington, D.C. area. Aquilino needed to find a new position before he might be laid off. He just needed some time.

(2) Margaret was a bond analyst for a large international bank. Over the years she had been awarded a significant amount of stock options. Each year, a large number of options vested. However, if she lost her position she would no longer be eligible for stock option vesting. In just six weeks, a very large number of stock options would vest. However, after receiving a poor review, she was concerned she might be let go before they vested. Margaret needed to remain employed for another six weeks. She just needed some time.

(3) Kevin and his wife had made all arrangements to adopt a child, which was scheduled to take place in about sixty days. At work, without warning, Kevin was placed on a Performance Improvement Plan (sometimes called a “PIP”), which contained a warning that, unless his performance improved “completely” in just 30 days, he could expect to be terminated. The problem was this: if he was no longer employed, the adoption process would come to an immediate halt. Kevin just needed to remain employed for 60 days, in order to complete the adoption process. He just needed some time.

Aquilino, Margaret and Kevin all managed to get the extended time on the job that each needed, and so all were able to navigate to get what they wanted, by making an honest application to each of their employers for a Family Medical Leave Act (“FMLA”) leave of absence. FMLA provides employees in companies with 50 or more employees up to 12 weeks of unpaid leave to attend to a medical or emotional difficulty, injury or illness, and the right to return to their position afterward. The law has widespread applicability, great flexibility, and very significant effectiveness – especially when you “just need some time.”

Aquilino had a teenage daughter with an eating disorder. Margaret had a mother who was in need of assisted living, but was living with Margaret while they sought a good home for her. Kevin’s wife was so nervous about losing out on the possibility of becoming an adoptive mother that she was having nightmares and difficulty eating. Aquilino, Margaret and Kevin each spoke to their family members’ therapists, doctors and health care providers, who in each case were willing to certify that each of their respective loved ones would benefit by having him or her spend more time with their loved one.

By extending his employment for 12 weeks, Aquilino got a new job, and his family was therefore able to remain in the Washington, D.C. area. By extending her employment, Margaret got the vesting of her stock options she sought. By extending his employment, Kevin and his wife got their dream come true: a baby son.

LESSON TO LEARN: You should not underestimate the utility of the FMLA leave of absence in your own work life or its potential to help you and achieve your own personal and workplace-related goals.

If you ever have a need to “e-x-t-e-n-d” your employment, and either you or a family member have a medical or emotional difficulty that would be helped by your having time off, please consider the many potential benefits of the FMLA law.

WHAT YOU CAN DO: If you need up to three months’ extension of employment, don’t hesitate to see if you might be entitled to a FMLA leave of absence. A few thoughts to help you if you do:
Read the rest of this blog post »

Self-Help Action Plan 1: “Totally Frazzled from Work? Here’s What You Can Do”

Published on December 9th, 2015 by Alan L. Sklover

New!!

SkloverWorkingWisdom™ – Self-Help Action Plan 1

“Totally Frazzled from Work?
Here’s What You Can Do”

A Plan for Addressing Extreme Exhaustion
and Possible Need for Time Off

© 2015 Alan L. Sklover


Employees often report that their job duties – and the way they are being treated at work – have been made them feel exhausted, drained, frustrated, bullied, confused and near debilitated. They report feeling hopeless, anxious, depressed, and unable to work, sleep, eat or think straight. If this describes you, you probably need to do something about it. It is for people in this situation that we have prepared this Self-Help Plan of Action 1, entitled “Totally Frazzled from Work? Here’s What You Can Do.”


Read the rest of this blog post »

“Not Feeling Well Enough to Work? – 13 Workplace Options (Part 2 of 2)”

Published on February 28th, 2014 by Alan L Sklover

“Be careful about reading health books. You may die of a misprint.”

–       Mark Twain     

ACTUAL “CASE HISTORIES”: Jana, 34, was an experienced graphic artist employed by a large website development company. For five years, she was a star performer, and over time rose to a Senior Graphic Artist position. The workload had grown quite considerably in recent years, due to her employer’s trying to get more and more work done with fewer and fewer employees. Still, Jana was the kind of person who exercised seven days a week, and always had the energy to do everything she wanted, always with a bright smile and a cheery personality.  

Lately, though, Jana didn’t feel quite right, and seemed increasingly unable to do her work. She experienced frequent exhaustion and problems concentrating. She couldn’t figure it out. “Could this be something that comes with your mid-30’s?” she asked herself, but it was surely more than that. Little by little, all sorts of things began to bother her: fatigue, fevers, hair loss, joint pain, sensitivity to light, and even mouth sores. They came and went. After seeing four different doctors, all of whom performed blood tests, none of whom could diagnose her problem, she was near the end of her rope. Finally, a rheumatologist diagnosed her with systemic lupus erythematosus, or “lupus” for short. 

Jana learned that lupus is an autoimmune illness affecting women more than men by a ratio of 7 to 1. Actually, it is a collection of autoimmune illnesses, in which the human immune system becomes hyperactive, and attacks normal, healthy tissues. Treatment consists primarily of immune-suppressive medications, primarily corticosteroids, although new drugs have recently come to market.

Jana had good days and bad days, but more and more they were bad. Unfortunately, her bad days affected her work performance so much that she received an annual performance review of “Does Not Meet Expectations,” and she was put on “Final Warning.” 

Though reluctant to share her problem with those at work, Jana spoke with her Human Resources Director, who was sympathetic, but clear in her message: there was little she could do. She said, “The work has to be done; if you can’t do the work, someone else has to.” With time not on her side, Jana consulted us to review her work options.

LESSON TO LEARN: It seems to be more and more common: employees all ages are having difficulty performing their work due to one or more illnesses, medical or otherwise. Some attribute this phenomenon to the increasing stress so many employees are experiencing at work, which is affecting their health. Some say it is the increasing workload, increasing hours demanded, and fewer and fewer sick days, vacation days and holidays. Some suggest that it is attributable to the many chemicals in our food, water and environment.

Whatever the cause is, our office is seeing more and more cases of employees feeling ill, many experiencing stress-related illnesses, and seeking alternative ways of coping and recuperating. While each person’s facts and circumstances are different, and because the options available to people in this situation can be confusing, people seek clarity. For many people, just knowing the available options, in and of itself, seems to reduce stress.   

While figuring out exactly which options are available to you, and which you should pursue, and how they are related to each other can be as frustrating, “If you need to know, you need to know.”   

HERE ARE 13 AVAILABLE OPTIONS: Here are thirteen different options available to those who are having a hard time doing their work due to illness or disability. Regardless of the options you are considering, your first step always needs to be to find out what your employer’s “illness-related” policies, plans and practices are, which in larger companies generally means contacting your Human Resources representative. Don’t be too surprised if your Human Resources representative is confused about the various options available to you, and how choosing one may affect the other, because the options available to you are multiple, often interrelated, and confusing to them, as well. 

Read the rest of this blog post »

“Not Feeling Well Enough to Work? – 13 Workplace Options (Part 1 of 2)”

Published on February 18th, 2014 by Alan L Sklover

“Be careful about reading health books. You may die of a misprint.”

–       Mark Twain

ACTUAL “CASE HISTORIES”: Jana, 34, was an experienced graphic artist employed by a large website development company. For five years, she was a star performer, and over time rose to a Senior Graphic Artist position. The workload had grown quite considerably in recent years, due to her employer’s trying to get more and more work done with fewer and fewer employees. Still, Jana was the kind of person who exercised seven days a week, and always had the energy to do everything she wanted, always with a bright smile and a cheery personality.  

Lately, though, Jana didn’t feel quite right, and seemed increasingly unable to do her work. She experienced frequent exhaustion and problems concentrating. She couldn’t figure it out. “Could this be something that comes with your mid-30’s?” she asked herself, but it was surely more than that. Little by little, all sorts of things began to bother her: fatigue, fevers, hair loss, joint pain, sensitivity to light, and even mouth sores. They came and went. After seeing four different doctors, all of whom performed blood tests, none of whom could diagnose her problem, she was near the end of her rope. Finally, a rheumatologist diagnosed her with systemic lupus erythematosus, or “lupus” for short. 

Jana learned that lupus is an autoimmune illness affecting women more than men by a ratio of 7 to 1. Actually, it is a collection of autoimmune illnesses, in which the human immune system becomes hyperactive, and attacks normal, healthy tissues. Treatment consists primarily of immune-suppressive medications, primarily corticosteroids, although new drugs have recently come to market. 

Jana had good days and bad days, but more and more they were bad. Unfortunately, her bad days affected her work performance so much that she received an annual performance review of “Does Not Meet Expectations,” and she was put on “Final Warning.” 

Though reluctant to share her problem with those at work, Jana spoke with her Human Resources Director, who was sympathetic, but clear in her message: there was little she could do. She said, “The work has to be done; if you can’t do the work, someone else has to.” With time not on her side, Jana consulted us to review her work options. 

LESSON TO LEARN: It seems to be more and more common: employees of all ages have difficulty performing their work due to one or more illnesses, medical or otherwise. Some attribute this phenomenon to the increasing stress so many employees are experiencing at work, which is affecting their health. Some say it is the increasing workload, increasing hours demanded, and fewer and fewer sick days, vacation days and holidays. Some suggest that it is attributable to the many chemicals in our food, water and environment. 

Whatever the cause is, our office is seeing more and more cases of employees feeling ill, many with experiencing stress-related illnesses, and seeking alternative ways of coping and recuperating. While each person’s facts and circumstances are different, and because the options available to people in this situation can be confusing, people seek clarity. For many people, just knowing the available options, in and of itself, seems to reduce stress.   

While figuring out exactly which options are available to you, and which you should pursue, and how they are related to each other can be as frustrating, “If you need to know, you need to know.”   

HERE ARE 13 AVAILABLE OPTIONS: Here are thirteen different options available to those who are having a hard time doing their work due to illness or disability. Regardless of the options you are considering, your first step always needs to be to find out what your employer’s “illness-related” policies, plans and practices are, which in larger companies generally means contacting your Human Resources representative. Don’t be too surprised if your Human Resources representative is confused, too, because the options available to you are often interrelated, and confusing to them, as well.   Read the rest of this blog post »


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™".

Receive All Our Posts - It's Free!

Monthly Newsletter, Discounts, Events