“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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“One of the secrets of life
is to make stepping stones out of stumbling blocks.”

– Jack Penn

ACTUAL CASE HISTORIES: A very commonly asked question is this: “I have followed your suggestions, but it has not yet worked . . . What do I do now?”

The writer usually explains that her email memo to management “pushing back” against a dishonest performance improvement plan (“PIP”) did not get her what she wanted. Or, his request for better terms of severance achieved only minimal results. Or, perhaps, her attempt to get a waiver for a non-compete agreement received no response. Or maybe, even, his complaint of discrimination was essentially ignored.

There are five simple “next steps” available in each of those problem situations, and others, too, that remain unsolved despite your best efforts. While choosing which “next step” among them is the best one for you, surely one or more of them is the wisest one for you. And, in fact, you can try all five if you wish.

What needs to be kept in mind is that there is no problem without a solution. And many different approaches can be tried to solve a problem. It might even be your second, third or fourth attempt to solve a problem that turns out to be the most effective.

LESSON TO LEARN: Maybe you did not immediately get the results you wanted to get when asking for removal of a negative reference from your HR file. Or maybe you were turned down in your first request for an investigation of your complaint of harassment. Or, maybe, too, your repeated complaints of unsafe working conditions were simply ignored. In each of these instances – and many others, too – you would likely be frustrated, demoralized, perhaps even angry.

As the simple saying goes, “Don’t get angry . . . get even.” Or, as we are reminded, “If at first you don’t succeed, try, try again.” Or, perhaps, bear in mind the adage, “There are more ways than one to skin a cat.” (My apologies to all of you cat lovers out there.) Don’t give up. Don’t get frustrated. Just keep going.

WHAT YOU CAN DO: Here are your five alternative next paths available to you. Coincidentally, each path forward ends with the letters “ate,” as do the words “navigate” and “negotiate.” Might it be pure coincidence?:
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“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:
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Question: Can an employer single out an employee who is on a Performance Improvement Plan (“PIP”)? 

I have been given a deadline of completing my work by 8:30 am, while my co-workers are not given any deadlines at all. Also, deadlines given to me are truly impossible to meet. 

                                                             Javier
Cedar Park, Texas

Answer: Dear Javier: In some ways you can be treated differently, and in some ways you can’t be. Please let me try to explain; here’s my best:   

1. As a general rule, every employee is a unique and different person, and the law does not require that every employee be treated in the exact same way as every other employee. Whenever I am asked a question like yours, I always say, “What would you say if your child told you, ‘Mom, you must treat me the exact same way you treat my brother and sister’?” I’m pretty confident you would say something like “Says who?” or “No way, everyone and every situation is a little different.” Well, it’s pretty much the same way in the employment context: no two employees and no two employment situations are exactly the same, either. So, treatment of different employees does not have to be identical. 

2. That said, there are some limits to how differently an employer can treat its employees. (Let’s call these “over the line differences.”) For example, an employer cannot simply deny certain employees a safe working environment, or the protections of the minimum wage and overtime laws. And, too, an employer would be on very shaky legal ground if it promised all of its employees a right to be free from illegal discrimination or retaliation, but fulfilled that promise only to some, and not to others. Thus, though employer’s have a degree of freedom, that freedom – like every kind of freedom – has its boundaries.  

3. What is certain is that employers cannot treat employees in varying ways due to the the employees’ age, gender, race, disability, ethnicity, pregnancy, and other so-called “protected categories.” (Let’s call these “improperly motivated differences.”) I know this may sound odd, but all people, and that includes employers, are actually quite free to “discriminate” in many different ways, but not on the basis of these “protected categories.” So, an employer is free to say, “We will only hire tall people.” Or “We do not want to hire people who smoke cigarettes, or who have college educations, for this particular job.” Those kinds of “discrimination’ are not prohibited, although they definitely are a kind of “discrimination” and result in a clearly “unequal treatment.” Seems unfair? Well, our society has not decided that all forms of discrimination are so unfair to be made illegal, only a few certain kinds.  

4. My view is that Performance Improvement Plans follow the same rules: they can and should result in some degree of different treatment, but not (a) “over the line different ways” or (b) “improperly motivated different ways.” If you start work at 8:15 am, and you are expected to complete a full day’s work by 8:30 am, and no one else has such “wacky” deadlines, well, that is simply “over the line.” Also, if you are given deadlines that seem to be set so that you are being “set up to fail,” then that is a kind of fraudulent motivation, and so is improper and illegal.  

5. If you believe how your Performance Improvement Plan (“PIP”) is being carried out is either “over the top different” or “improperly motivated different” you really do need to report it to Senior Management and Human Resources. While Performance Improvement Plans can be tools of constructive collaboration, (a) the decision to place someone on a PIP, (b) their design, and (c) how the PIP is carried out often end up improper, illegal and fraudulent. Through them the employee can be denied his or her legal and workplace rights, and the employer – including the employer’s shareholders or other owners – can be wrongfully and fraudulently deprived of a good, loyal and valuable employee.  

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”). (Though intended to “push back” to receipt of a PIP, it can be adapted to be used to “push back” to how a PIP is carried out.) To obtain a copy, just [click here.] Delivered by Email – Instantly! 

This kind of “Pushback to a PIP” is an important part of your standing up for yourself and should not be avoided. Fact is, Javier, you have little to lose, because if you don’t “Stand up and push back” then sooner than you think you will probably be out of a job. 

You face a challenge, no doubt about that, but many, many people overcome that exact kind of challenge every day. You can, too.

My Best,
Al Sklover

 P.S.: Standing Up to a Performance Improvement Plan (“PIP”) is one of the “scarier” experiences at work. 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! 

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

© 2013 Alan L. Sklover, All Rights Reserved.

Question: Hi, Alan, 

I am a senior individual contributor at a big company. Last year was my first year there. I applied for a job in one group but got assimilated into another group though both groups are in the same organization. As such, I never got a different job description, and none of my three different managers during the 12 months ever sat down with me to explain to me my job expectations. 

I successfully completed all of the projects they assigned me, and then at annual performance review time I was given a “less than satisfactory” rating. They said that I am a senior resource and should have done more and should have known to do more, that is, should have asked for more challenging projects. I said it was unfair that they never mentioned any issues to me during the entire year, and never set proper expectations. 

They refused to change my rating and I am thinking of approaching HR and perhaps even taking legal action if warranted. Do I have a case here? 

Your advice and insights are much appreciated.

Johnny
Silicon Valley, California

Answer: Dear Johnny: Your question is, for me, a really good one for several reasons: (a) lot of people ask it (or a version of it), (b) it brings up some pretty important issues of law, negotiation and working wisdom, and (c) gives me a chance to discuss my new idea of a “PVP.” Here we go:            

1. What I see here is more a Failure of Management than an Employee Performance Problem. Johnny, what you describe for me is a series of errors by your managers that culminated in a failure to derive proper value from an obvious valuable employee. The “symptoms” of this “illness” include: (a) lack of clear job description, (b) a revolving door of managers, (c) no warnings regarding deficient performance, and (d) an understandably – though unfortunately – dejected employee. The portrait you paint in your letter is exactly the portrait so many other of my blog visitors paint, but yours is a relative masterpiece. 

The last “symptom” of this kind of management failure is scapegoating of the employee, that is, “It is your fault.” Poor management is not your fault, should not be blamed on you, and this dishonest performance review is just another example of it.   

2. I don’t think an appeal to Human Resources – at least the kind of appeal you are contemplating – is a viable alternative. Now, don’t think I am an “HR-hater,” because I am not. In fact, I counsel and represent many HR professionals, and they are overall a great bunch of people who are often “between a rock and a hard place.”  

That said, HR’s job is to assist management in its “acquiring, maintaining and eliminating human resources” – who are much more appropriately described as “employees” or “human beings.” So, you can expect, and must expect that HR representatives, while of the best intentions, will likely side with your managers, who are, in effect, their clients. Any other expectation on your part – that they are “enforcers of fairness” or the “employee’s friend,” would just not be reasonable.   

My “blog family” all know that I am a big believer in “standing up and pushing back” at incorrect Performance Reviews and Performance Improvement Plans (“PIP’s”). It’s just that I think it ought to be done in the most effective way.  

3. I truly do not believe you have a “legal case,” at least not now. When lawyers are asked the question, “Do I have a case?” they think of two things: (a) “Is there an applicable legal theory to use?”, and (b) “Are there any presently-existing financial damages?” While in these circumstances we might use the legal theories of breach of contract, misrepresentation or fraud, all of them in this circumstance would be something of a “stretch.” Additionally, at this time there are no identifiable or quantifiable financial “damages” to sue for.

Should you be terminated as a result of this dishonest Performance Review, my view of your “Case” would be that it is not a “stretch,” but may well be on solid legal ground. I would be even more inclined to say you have a legal case to pursue if you were fired on the basis of this Performance Review after you rebutted it. 

Not having a “legal case” surely does not mean that you do not have a “negotiating case,” or that all is lost. I enthusiastically encourage employees who have been subject to false, fraudulent, incorrect or improperly motivated performance reviews, or performance improvement plans, to “push back” in a kind of negotiating. There are many articles, newsletters and videos on my blogsite that explain “What to Do and How to Do It“™.     

4. Your first path forward should be to “Push Back” to a senior member of management, not HR. The job of Human Resources is not to provide fairness or truth, but to support management in its “management” of “human resources.” For this reason, an appeal to Human Resources is not the way I suggest people in your circumstances approach this problem. 

Instead, I suggest you take your “appeal” to a “Manager of your Managers,” that is, someone higher up the “food chain” of corporate life who can, and hopefully will, tell HR to resolve your concern. If HR is left to its own devices, it will almost never disagree with the managers who they, in effect, serve and sometimes even report to. 

Your most attractive path forward is a two-step approach: providing the “Manager’s Manager” with both (a) a strong Rebuttal, but also (b) what I call a Proven-Value-Presentation (“PVP”), which is the opposite of a Performance Improvement Plan (“PIP”).  When employees are given unfair and dishonest poor Performance Reviews, the next step in the unfair and dishonest process that often takes place is a Performance Improvement Plan (“PIP.”) In a vast majority of PIP’s, I am sorry to say, employees are just further unfairly reviewed, compounding the unfairness by using the first unfair Performance Reviews as “evidence” in the next unfair step, and then, sooner or later, giving the employee the unfair and dishonest option of “resign or be fired.” 

I wish it was not the case, but it is so often the case that these measures are undertaken to eliminate “positions” and “overhead” – what I prefer to call “working people” – without severance, without unemployment assistance, and without basic human dignity. 

5. The first step in standing up for yourself is a Performance Review Rebuttal, which seeks to respectfully but with conviction “set the record straight.” Such Performance Review Rebuttals should be addressed to a Senior Manager – not HR – and should address and correct (a) false information, (b) things taken out of context, (c) minor items blown out of proportion, and (d) improper motivations, such as retaliation, discrimination or fraudulent cost-cutting. 

We offer a Model Memo entitled “Model Performance Review Rebuttal,” you can adapt to your own facts and send to a Senior Manager to respond to the unfair and dishonest Performance Review you’ve received. It shows you “What to Say, and How to Say It,”™ just [click here.]

6. Recently I’ve starting using a second – more assertive – step with my clients, an idea I call “Proven-Value-Presentation.” My idea of a Proven-Value-Presentation, or “PVP,” is the functional opposite of a PIP: its purpose is to prove the employee’s value to the organization, to show that the “review of performance” must be faulty. 

This is the basic idea behind my idea of Proven-Value-Presentations: If clients are happy, if sales are up, if colleagues are pleased, if subordinates are motivated, if costs are down, if quality is applauded, if profits are rising, and if feedback is glowing . . . could performance possibly be poor? A PVP does not have to be formal, but should be in writing, and sent by email, as should all important workplace communications. 

These two steps are available to you, they are the most effective responses to receiving an incorrect performance review, and also are “balanced” in that they (a) point out and address the wrong, and (b) exhibit and emphasize all that is right. 

Johnny, I hope this addresses your concern, and gives you some sense of your options. Valuable employees should not be lost due to management failures. Instead, the “record” should be corrected, to the betterment of everyone’s interests. 

My Best to You,
Al Sklover 

P.S.: One of our most popular “Ideal Packages” of forms, letters and checklists is entitled “Ultimate Performance Review Package” consisting of three Model Letters: Before Review, Enhancing Your Chances of a Positive Review, and Two After Review, one Requesting Rebuttal Forms and Procedures, and one Model Rebuttal to Performance Review, plus our 141-Point Guide and Checklist for Performance Review.” To obtain a complete set, just [click here.] Delivered by Email – Instantly! 

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

© 2013 Alan L. Sklover, All Rights Reserved.