Earlier this month an ASE member asked about whether doing a performance improvement plan (PIP) made sense if an employee was not performing well and respective management did not think a PIP would work. Should they do it anyway?

PIP’s do have value but also have shortcomings. On the immediate question management did not think the person would respond given they had been trained and given coaching in the past without much success. They had documented the performance concerns and counselling that had been given, and the PIP was seen more of a last chance rather than a path to getting the employee to improve. As many HR professionals know, a PIP is often used in advance of a likely termination. Noah Bunzl, an attorney with Tarter, Krinsky & Drogin LLP, practicing in this area makes an argument that PIPs may aggravate the situation and increase possible employer liability if they are not done with care and forethought.

In addition to garnering improvement, employers consider PIPs as a way to document poor performance or behavior and to protect them from liability by creating a written record. Mr. Bunzl pointed to some interesting cases where the PIP backfired, and the employer dug themselves into a deeper hole.

Pointing to a recent case out of the Seventh Circuit Court of Appeals, the employer had an employee put on a PIP where the deadline for compliance had already passed. The employer then noted, and the employee had signed, the “Did Not Meet Action Plan” even as the employee pointed out that the PIP had this blatant error on it. The Court however saw this as a PIP “that the employee had already failed.”

Obviously if you want a PIP to stand up to legal scrutiny you can’t draft it with deadlines that have already passed.

In another case from 2024 Mr. Bunzl describes an employer that used a PIP that outlined deadlines for progress on five major projects but gave the employee only two weeks to complete them. The Court found that it would be impossible to meet the PIPs requirements and denied the employer’s motion for summary judgement.

In a third example using a recent case, the employer’s PIP contained “contradictory evidence about the employee’s performance that raised “material issues of fact as to whether the PIP was justified” and raised the question as to whether the PIP was just pretextual.

Simple lessons in the use of a PIP are, if using one, make sure the goals set can be met within a reasonable time period or risk a Court looking to it as possible evidence of a non-performance based motive that may also include discrimination and/or retaliation.

Mr. Brunzl pointed to other PIP actions that over-road existing accommodations that had been given the employee and further placed the employee on PIP requirements that “made it more difficult to meet the original [PIP’s] goals.

These are all incidents taken to Court alleging a wrongful employment action and the Court subsequently determining that the PIP was being used to justify a questionable decision to terminate the employee.

Mr. Bunzl points out that employers should make sure the objectives in a PIP are “reasonable and achievable.” The PIP should be “based upon an existing record of performance deficiencies.” Do not use a PIP if the employer does not think the goals can be met lest a Court “determines the PIP is an attempt to paper the record…”

As with the ASE member’s situation, it may be better to just move to termination – given the non-performance is properly documented to begin with.  In addition, do not forget to check whether other non-performing employees have been treated the same way. Consistent application of discipline is important. Mr. Bunzl recommends treating employees equally and under consistent measurements.

Practicing proper PIP usage will avoid a Court second guessing a termination decision in those cases.

Source: Law360 Employment Authority. Recent Rulings Show When PIPs Lead to Employer Liability. (11/13/2025)