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

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

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.  

Al Sklover


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

© 2012 Alan L. Sklover, All Rights Reserved.

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