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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