11 Signs of a Sham Performance Improvement Plan

by | Nov 18, 2020 | Employment Law | 0 comments

11 Signs of a Sham Performance Improvement Plan

Author: David Ertl, Employment Lawyer

In the vast majority of cases, Performance Improvement Plans (PIPs) are designed to get rid of employees.

As an employment lawyer with over 16 years’ experience, here are my top indicators that a PIP is a sham:

1.      The very imposition of the Performance Improvement Plan is based on a set of facts that are misleading or untrue. For example, you’ve been told that you are not reaching your targets – but reason the reason is because you have not been provided with adequate resources to do your job.

2.      In your performance review (leading to the Performance Improvement Plan), the employer failed to give you discuss your positive achievements, the goals you reached, and the difficulties you’ve overcome. By only focusing on the negative, it’s a sure sign the employer is looking to get rid of you.

3.      Your employer’s criticism focuses on non-core aspects of your job

4.      If your performance improvement “goals” are ridiculously vague. For example, such ridiculously vague goals such as: (a) increase employee productivity; (b) proactively undertake ownership; (c) demonstrate effective communication and (d) show effectiveness in reaching objectives.  If you can’t understand what the goal is, neither can the employer, which means the PIP is probably a sham.

5.     Goals that cannot be quantified. For example, suppose that the results or goals for your Performance Improvement Plan include “significantly greater sales volume” or “improve communication with managers”.  This is a key indicator that you are being set up to fail.

6.     Goals that are impossible to achieve. This is a favourite of the employer.  Examples are: not giving you enough time to reach the goal or else setting a target that virtually nobody could reach.  For example: “Hey, we want you to make 30 client connections in the next 5 days”.  You can bet that if your PIP is 90 days long, then it would realistically take you double or triple that time to achieve the stated goals.

7.     And oldy but goody: insufficient resources provided.  In this scenario, the employer tells you to complete a gargantuan task that would require a team to do it, but doesn’t provide you with enough staff.

8.     Failure to provide coaching, instructions, or assistance. A true Performance Improvement Plan would probably include the assignment of a coach, mentor, or another employee to help you.  In my experience, because PIPS are mostly designed to get rid of someone (and typically implemented by the very manager who hates you), coaching is rarely offered.

9.     Little, or no feedback. As with number 8 above, the manager that hates you is unlikely to want to spend any time with you.  The manager might set up meetings to speak with you, and then cancel them, or provide some perfunctory comments.  All nonsense.

10.     PIP is sabotaged by the employer when it gives you “tasks” that interfere with your work. For example, the employer gives you a burdensome assignment that prevents you from getting your core work done.

11.     Employer micro-manages you during the PIP. Here the employer treats you like a criminal, criticizes you, makes you paranoid, etc.  Here the employer is hoping you are distracted so you fail your PIP, or else, you quit out of frustration.

What’s the Big Deal about a Performance Improvement Plan?

The one thing you should understand about a Performance Improvement Plan (apart from the fact that it is mostly a tool to terminate employees), is that it may very well be a method of terminating you without providing severance.

Often, a PIP will expressly provide that your failure to survive it will result in your termination for cause – meaning no severance.  Otherwise, if your PIP does not say so, you may assume that the employer could take that position later, when it fires you.

In such a case, you are likely in a battle to save whatever severance entitlements you might have. [As a note, I have seen many PIPs implemented because the employee has accrued significant termination entitlements – mainly because of long service – and the employer is looking to save money.  Dirty.  But, it happens all the time].

OK, But What Can You Do?

If you are handed a PIP that you do not agree with (meaning you do not think it was warranted to begin with), and you intend to express your disagreement, do so politely and professionally and in writing.

At the same time, as you are still an employee, you are obliged to work under the PIP.  If you refuse outright, you could be terminated for cause, for insubordination (for example).

Whether or not you agree with being put on a PIP in the first place, if the PIP suffers from defects (as I discussed above), then you should – in writing – question everything.  Targets, resources, coaching, reasonableness, definitions, etc.  Be ruthless with your analysis.

What is the Benefit of Challenging a Performance Improvement Plan?

Based on my experience (but there is no guarantee of what will happen in any given case), an employer who is challenged won’t have a strong appetite to correct or modify the Performance Improvement Plan. Often this means the employer will seek to terminate the relationship before the end of the PIP, usually offering severance.

That said, employer’s come in all shapes and sizes and mentalities.  Other possible outcomes include:

1. the employer firing you with cause following the PIP (no severance)

2. the employer firing you without cause (but the employer will rely on your failed PIP to try to get you accept a lowball severance offer); and

3. you quit out of frustration.

In any of these scenarios, it is highly recommended that you consult with an experienced lawyer.

How We Can Help You

I am often called upon by employees who are placed on PIPs.  Most of the time we are able secure a favourable resolution to the matter based on the employee’s departure.

Sometimes we help the employee behind the scenes, by providing advice.  Other times, we take a front-line role, and negotiate directly with the employer or their counsel.

Ertl Lawyers – Top Rated Ontario Employment Lawyers

Placed on a Performance Plan? Calling us for a free consultation could make all the difference: toll free (888) 222-6184

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David Ertl Lawyer
About David Ertl
David Ertl, LL.B, has practiced employment and disability law for over 20 years. He is also a certified workplace investigator, former adjunct professor, and has written extensively in the areas of employment law, disability insurance, and tribunal practice and procedure.


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