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Performance Improvement Plan: "We're trying to fire you but need to do it by the books as to mitigate liability."

by kahrl 5y ago

prirun 5y ago
I don't understand why people keep saying this. Every state except Montana in the US is "at will": the employer can fire you at any time with no reason. I suppose you could try to prove discrimination because of age or something else, but just like you can walk out and never come back, the employer can ask you to leave and you're done. Companies have no liability if you are fired other than a discrimination lawsuit. https://work.chron.com/fire-state-mean-20994.html https://work.chron.com/fire-state-mean-20994.html
- aidenn0 5y ago
  Legal departments are often fairly conservative. Do you know for a fact that the person you are firing is not a member of a protected class? If they are then they can potentially convince a judge that "fired with no reason" could be code for "fired for being the member of a protected class," at least to the degree that the trial cannot be dismissed. Once you have reached that point, it's almost moot whether or not the plaintiff will win, as lawsuits are sufficiently headache inducing and expensive that a settlement is likely. The odds of the above happening might be low, but being made aware of the possibility causes employers to CYA more than you might think in an at-will state.
  - mywittyname 5y ago
    Also, it's a check against management.
    - aidenn0 5y ago
      That's also a good point. If the manager for the direct report is racist/sexist/agist/whatever then the CYA becomes even more important for the company.
  - garbagecoder 5y ago
    Everyone is in a protected class. It’s a common misconception that white men etc aren’t. Under employment laws, if you suffer adverse employment actions on the basis of a protected class, even if you are a white cishet thin Protestant male with money and an Ivy League degree you are in protected classes. Lawyers tell management this and get blamed for the law and courts being the way hey are. “Buy them out with a severance and a release” gets “why should I pay for something I’m allowed to do.” A few months later in house counsel gets screamed at “why is outside counsel charging us $50,000 for this summary judgment case?!” “Well, I told you that——-“ “This is your fault! Why doesn’t EPLI cover it” “You said it was too expensive, so we got the one with the high deductible.” Since the defense bar also lines their pockets with these cases, and scare pieces on their blogs “review your employee handbook now or else!” No one fixes anything.
- ballenf 5y ago
  Because some of their employees are in one or more protected classes and if you don't have a legit reason documented it's much harder to defend against a claim of illegal discrimination. And you can't just gather those reasons for employees in protected classes or that itself is discriminatory treatment of employees. So you have to make a choice as a large company: PIP systems or set aside more money for legal fees and settlements. Most opt for the former.
- mikestew 5y ago
  the employer can fire you at any time with no reason And in the U. S., anyone can sue anyone at any time with no reason (though there should be some semblance of a reason, or good luck finding counsel to take the case). Maybe you fired me because I'm black, maybe you didn't, but without any documentation of what the real reason was, the company stands a good chance of settling to avoid the time in court.
  - ransom1538 5y ago
    "And in the U. S., anyone can sue anyone at any time with no reason (though there should be some semblance of a reason, or good luck finding counsel to take the case)." Judges hate this be careful. If you sue for "not enough ham in your subway sandwich" - I would bring overnight clothes and a toothbrush. Contempt of court is a thing. Judges hate time wasters.
- lloydatkinson 5y ago
  The internet is bigger than america, it's a shame I need to remind you.
  - mikestew 5y ago
    Remind me again of the location of the corporate headquarters of the company that this portion of the thread is specifically talking about? Need I remind you of context?
- garbagecoder 5y ago
  Because that’s true. You think it’s free to get even a frivolous case dismissed under discrimination or wage/hour laws? Lol. Google “title VII burden shifting framework.” For companies in SV, i.e. under CA law, it’s easily tens of thousands to dismiss even a frivolous case. Better documentation means only increasingly bottom feeding plaintiffs lawyers will take the case.
- jrs235 5y ago
  It's also about making it firing "for/with cause" so the employee can't make a successful unemployment claim. The more unemployment claims against a company, the higher unemployment insurance rates/amounts the company has to pay.
  - sgerenser 5y ago
    Being fired just because you’re bad at your job (as would normally be the case with a PIP) doesn’t make you ineligible for unemployment. Typically you’d have to be fired for gross negligence or doing something outright illegal.
- taurath 5y ago
  When management starts arbitrarily firing people without the perception that it’s a fair process, absolutely nobody sticks around. The process is for the benefit of retention because of employees perceive they can be dropped on a whim they start to act like it.
UncleMeat 5y ago
If this were true, why are PIPs not universal across virtually every industry? It isn't like fired employees in software would be uniquely litigious.
- rland 5y ago
  I've worked on employment litigation in several industries (white and blue collar), they are everywhere. Defense usually wins if they have good documentation of putting employees on a PIP, even if the reason is obviously dubious*. Maybe I'm cynical because I've only seen it in a lawsuit context, but if you're put on a PIP, start applying. There's no out. * like, discrimination, company wants to fire long-term employee because of an injury, company wants to fire an employee for union organizing, etc.
  - UncleMeat 5y ago
    > There's no out. I'm a manager at Google and have therefore been privy to a bunch of PIPs. I know a bunch of people who have survived them and many of them have later gone on and had successful promos. I've seen exactly one case where everybody involved was resigned to the fact that the PIP would almost certainly fail and that is because the person being fired was a raging asshole. A manager who wrote a PIP designed to be impossible would themselves be given shit performance reviews.
    - rossjudson 5y ago
      Exactly. A PIP is "I don't want to fire you, but you gotta fix some stuff." Complex environments like Google need to build and retain knowledge. Firing for zero cause is just...well, we have serious things to do, and that's just dumb. I've never seen it. A PIP isn't just a closed two-way conversation between a report and a manager. In every case I've seen there are multiple eyes on a PIP and revisions to them.
- rurp 5y ago
  I suspect white collar employees are a lot more likely to sue an employer in general, and PIPs are pretty common across white collar industries. Filing a lawsuit is a lot easier for people who have money in the bank, a flexible schedule, familiarity with the law, and personal connections to lawyers; all attributes that correlate with white collar professionals.

Performance Improvement Plan: "We're trying to fire you but need to do it by the books as to mitigate liability."

by kahrl 5y ago

Performance Improvement Plan: "We're trying to fire you but need to do it by the books as to mitigate liability."

I don't understand why people keep saying this. Every state except Montana in the US is "at will": the employer can fire you at any time with no reason. I suppose you could try to prove discrimination because of age or something else, but just like you can walk out and never come back, the employer can ask you to leave and you're done. Companies have no liability if you are fired other than a discrimination lawsuit. https://work.chron.com/fire-state-mean-20994.html https://work.chron.com/fire-state-mean-20994.html

aidenn0 5y ago
Legal departments are often fairly conservative. Do you know for a fact that the person you are firing is not a member of a protected class? If they are then they can potentially convince a judge that "fired with no reason" could be code for "fired for being the member of a protected class," at least to the degree that the trial cannot be dismissed. Once you have reached that point, it's almost moot whether or not the plaintiff will win, as lawsuits are sufficiently headache inducing and expensive that a settlement is likely. The odds of the above happening might be low, but being made aware of the possibility causes employers to CYA more than you might think in an at-will state.
- mywittyname 5y ago
  Also, it's a check against management.
  - aidenn0 5y ago
    That's also a good point. If the manager for the direct report is racist/sexist/agist/whatever then the CYA becomes even more important for the company.
- garbagecoder 5y ago
  Everyone is in a protected class. It’s a common misconception that white men etc aren’t. Under employment laws, if you suffer adverse employment actions on the basis of a protected class, even if you are a white cishet thin Protestant male with money and an Ivy League degree you are in protected classes. Lawyers tell management this and get blamed for the law and courts being the way hey are. “Buy them out with a severance and a release” gets “why should I pay for something I’m allowed to do.” A few months later in house counsel gets screamed at “why is outside counsel charging us $50,000 for this summary judgment case?!” “Well, I told you that——-“ “This is your fault! Why doesn’t EPLI cover it” “You said it was too expensive, so we got the one with the high deductible.” Since the defense bar also lines their pockets with these cases, and scare pieces on their blogs “review your employee handbook now or else!” No one fixes anything.
ballenf 5y ago
Because some of their employees are in one or more protected classes and if you don't have a legit reason documented it's much harder to defend against a claim of illegal discrimination. And you can't just gather those reasons for employees in protected classes or that itself is discriminatory treatment of employees. So you have to make a choice as a large company: PIP systems or set aside more money for legal fees and settlements. Most opt for the former.
mikestew 5y ago
the employer can fire you at any time with no reason And in the U. S., anyone can sue anyone at any time with no reason (though there should be some semblance of a reason, or good luck finding counsel to take the case). Maybe you fired me because I'm black, maybe you didn't, but without any documentation of what the real reason was, the company stands a good chance of settling to avoid the time in court.
- ransom1538 5y ago
  "And in the U. S., anyone can sue anyone at any time with no reason (though there should be some semblance of a reason, or good luck finding counsel to take the case)." Judges hate this be careful. If you sue for "not enough ham in your subway sandwich" - I would bring overnight clothes and a toothbrush. Contempt of court is a thing. Judges hate time wasters.
lloydatkinson 5y ago
The internet is bigger than america, it's a shame I need to remind you.
- mikestew 5y ago
  Remind me again of the location of the corporate headquarters of the company that this portion of the thread is specifically talking about? Need I remind you of context?
garbagecoder 5y ago
Because that’s true. You think it’s free to get even a frivolous case dismissed under discrimination or wage/hour laws? Lol. Google “title VII burden shifting framework.” For companies in SV, i.e. under CA law, it’s easily tens of thousands to dismiss even a frivolous case. Better documentation means only increasingly bottom feeding plaintiffs lawyers will take the case.
jrs235 5y ago
It's also about making it firing "for/with cause" so the employee can't make a successful unemployment claim. The more unemployment claims against a company, the higher unemployment insurance rates/amounts the company has to pay.
- sgerenser 5y ago
  Being fired just because you’re bad at your job (as would normally be the case with a PIP) doesn’t make you ineligible for unemployment. Typically you’d have to be fired for gross negligence or doing something outright illegal.
taurath 5y ago
When management starts arbitrarily firing people without the perception that it’s a fair process, absolutely nobody sticks around. The process is for the benefit of retention because of employees perceive they can be dropped on a whim they start to act like it.

UncleMeat 5y ago

If this were true, why are PIPs not universal across virtually every industry? It isn't like fired employees in software would be uniquely litigious.

rland 5y ago
I've worked on employment litigation in several industries (white and blue collar), they are everywhere. Defense usually wins if they have good documentation of putting employees on a PIP, even if the reason is obviously dubious*. Maybe I'm cynical because I've only seen it in a lawsuit context, but if you're put on a PIP, start applying. There's no out. * like, discrimination, company wants to fire long-term employee because of an injury, company wants to fire an employee for union organizing, etc.
- UncleMeat 5y ago
  > There's no out. I'm a manager at Google and have therefore been privy to a bunch of PIPs. I know a bunch of people who have survived them and many of them have later gone on and had successful promos. I've seen exactly one case where everybody involved was resigned to the fact that the PIP would almost certainly fail and that is because the person being fired was a raging asshole. A manager who wrote a PIP designed to be impossible would themselves be given shit performance reviews.
  - rossjudson 5y ago
    Exactly. A PIP is "I don't want to fire you, but you gotta fix some stuff." Complex environments like Google need to build and retain knowledge. Firing for zero cause is just...well, we have serious things to do, and that's just dumb. I've never seen it. A PIP isn't just a closed two-way conversation between a report and a manager. In every case I've seen there are multiple eyes on a PIP and revisions to them.
rurp 5y ago
I suspect white collar employees are a lot more likely to sue an employer in general, and PIPs are pretty common across white collar industries. Filing a lawsuit is a lot easier for people who have money in the bank, a flexible schedule, familiarity with the law, and personal connections to lawyers; all attributes that correlate with white collar professionals.