“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:

1. Resigning – one of the two choices given to you – will likely make you ineligible for unemployment insurance Resignation almost always makes an employee ineligible for unemployment insurance benefits. On the other hand, being terminated for alleged poor performance gives the employee the right to collect unemployment benefits in most states in most instances. Do not depend on an assurance by your HR representative otherwise.

2. Resigning also usually makes you ineligible for severance. Severance is almost always given to those who are laid off due to a position elimination or downsizing. If your employer does offer you severance if you resign, first, you must get it in writing, and second, it will probably be minimal, that is rarely more than two or four weeks of salary, even if the severance you would be entitled to if honestly downsized or laid off would be far, far more.

3. Bear in mind that “resigning” without first obtaining a new job is suspect to prospective employers. Human Resources representatives often tell employees who they are giving PIP’s to, “If you are terminated for performance, it won’t look good to future employers, but if you resign, it will look much better. I say, “Hogwash.” Employers never tell future employers why employees departed from their employment. As any Human Resources representative will confirm, almost all employers have a strict policy against sharing with anyone the reason(s) a former employee is no longer with the company.

To the contrary, the longer you can remain employed – even if it is while you are on a Performance Improvement Plan – you have an opportunity to look for a new job while you are employed, when you seem more valuable. Also, if you are employed, no interviewer will ask you “Why are you no longer working.”

4. Successful completion of a PIP – the other choice given to you – is almost always near-impossible, by design. In my experience, with few exceptions, PIP’s are usually designed to make success impossible. Often the time period is too short. Frequently the criteria of success are so subjective and vague – such as “make your Manager feel confident in you” – no one can tell whether you have succeeded. And, too, sometimes achieving the assigned task – such as meet with 200 new clients in one month – is beyond human achievement.

5. Most employers say that, if you attempt to “survive” the PIP, but are unsuccessful, you will be subject to immediate dismissal. Performance Improvement Plans are quite often offered to employees as “You can try if you want to, but if you fail it will surely hurt you.” Think about it: If your employer really wanted you to succeed at improving your performance, would the Performance Improvement Plan be presented to you in that way?

6. And, too, most PIP’s are also presented with a rather ominous condition: “If you try, and we feel you are not improving enough, at any time we can terminate your employment – without notice or severance.” This condition is very commonly placed before the allegedly non-performing employee as nothing less than a scare tactic. And, believe me, it is scary. It is one more strong and clear indicator that Performance Improvement Plans are designed to remove you from employment “quickly, quietly and inexpensively.” If you truly wanted someone to learn to do his or her job better, would you start off by scaring them? By suggesting in every way possible that they would be better off resigning?

It’s not easy to “Stand Up and Push Back” to a Performance Improvement Plan. To help you with What to Say, and How to Say It™, we offer a “Model Response to Receiving a Performance Improvement Plan (“PIP”). To obtain a copy, just [click here.] Delivered by Email – Instantly!

7. “Pushing Back” at a Performance Improvement Plan – the “Unspoken Third Alternative – is often the wisest, most effective and correct alternative to choose. The goals of “pushing back at a PIP,” or what is sometimes called a “Submitting a Respectful Rebuttal,” are the goals that most employees see to be in their best interests: (a) calling off the Performance Improvement Plan, (b) if appropriate, redesigning the PIP to truly help you be more effective and productive in your job, (c) looking into why it was put forward in the first place, (d) perhaps permitting you to transfer to a different manager or department, (e) perhaps permitting you to look and find a new job elsewhere, as an alternative to leaving right away, and/or (f) a fair and sufficient severance arrangement.

The “third alternative” of seeking these sensible and proper goals is rarely if ever presented to you, but there is nothing stopping you from choosing it, nonetheless.

Standing Up to a Performance Improvement Plan (“PIP”) can be confusing. To ease your mind and help you, we offer a 152-Point Guide and Checklist for a PIP. To get your copy, just [click here.] Delivered by Email – Instantly!

8. As your first step, you should acknowledge receipt of the Performance Improvement Plan, but write above your name “Respectful Rebuttal to Follow.” Most often you will be asked to acknowledge receipt of your PIP. This you need to do, as it is true you were handed it, and you cannot stop the process by being insubordinate and refusing to acknowledge it. Then you simply proceed to prepare and submit your “respectful rebuttal.”

P.S.: Consider viewing our Sklover On Demand Video entitled “How to Push Back to a PIP.” Just sit back, relax, watch and listen. To do so, just [click here.] Delivered by Email – Instantly!

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SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues requires that you think “out of the box,” and build value and avoid risks at every point in your career. We strive to help you understand what is commonly before you – traps and pitfalls, included – and to avoid the likely bumps in the road. Understanding that, if you are presented with a Performance Improvement Plan, the “unspoken third choice” is quite often the best alternative to choose, is one important way to navigate wisely.

Always be proactive. Always be creative. Always be persistent. Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what SkloverWorkingWisdom™ is all about.

*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.

Please Note: This Email Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale.

Sklover Working Wisdom™ is a trademarked newsletter publication of Alan L. Sklover, of Sklover & Company, LLC, a law firm dedicated to the counsel and representation of employees in matters of their employment, compensation and severance. Nothing expressed in this material constitutes legal advice. Please note that Mr. Sklover is admitted to practice in the state of New York, only. When assisting clients in other jurisdictions, he retains the assistance of local counsel and/or obtains permission of local Courts to appear. Copying, use and/or reproduction of this material in any form or media without prior written permission is strictly prohibited. All rights reserved. For further information, contact Sklover & Company, LLC, 45 Rockefeller Plaza, Suite 2000, New York, New York 10111 (212) 757-5000.

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