Responding to a Performance Improvement Plan

A performance improvement plan is presented as an opportunity. Sometimes it is one. Frequently it is the last step in a process that has already reached its conclusion, and its real function is to create a written record establishing that the company identified deficiencies, communicated them, and gave you a chance to correct them, so that the termination which follows looks documented rather than arbitrary.

Both versions look identical on the first day. The Law Offices of Albert Goodwin advises New York City managers and employees on how to read a PIP, how to respond to it, and what it means for what comes next.

How to Tell Which Kind You Have

Signs that a plan is genuine: the goals are specific and measurable, they are achievable within the stated period by someone in your role, resources or training are actually being provided, the manager is engaged in check-ins, the criticisms are consistent with what you have been told before, and the timeline is reasonable for the work involved.

Signs that a plan is documentation:

• The goals are vague or subjective, phrased as improving communication, demonstrating leadership, or being more collaborative, with no measurable standard.
• The targets are not achievable in the time given, or depend on other people's cooperation you cannot compel.
• The criticisms are new, and contradict recent positive reviews, raises, or bonuses.
• Your responsibilities were reduced shortly before the plan was issued, making the goals harder to meet.
• The plan arrives soon after you complained about something, requested a leave or accommodation, disclosed a medical condition or a pregnancy, or returned from leave.
• Your replacement is already being recruited, or a colleague has quietly absorbed part of your role.
• The plan follows a change in management, and other longer tenured people are receiving similar plans.
• HR is unusually involved for a routine coaching exercise.

New York Is an At-Will State, and That Cuts Both Ways

Absent a contract or a collective bargaining agreement, an employer in New York may terminate an employee at any time, for any reason or no reason, as long as the reason is not an unlawful one. There is no legal requirement to issue a PIP, no requirement that it be fair, and no claim for being placed on one that you did not deserve.

What the law does prohibit is termination or adverse treatment because of a protected characteristic or protected activity. So the question is never whether the PIP was fair. It is whether the real reason for it, and for what follows, was lawful. The PIP itself becomes evidence in that inquiry, and evidence can be read in either direction: the employer will use it to show a legitimate reason, and a well-handled response can undercut the plan's credibility as documentation.

Respond in Writing, Carefully

The most common mistake is to sign the plan, say little, and try to work harder. The second most common is to write an angry email. Neither serves you.

A written response should do specific work:

1. Acknowledge receipt without admitting the substance. Where a signature is required, note that you are signing to acknowledge receipt and that you do not agree with the assessment.
2. Correct factual errors, with specifics. If the plan says you missed three deadlines, and two of them were moved by the client, say so with dates. Factual inaccuracies in the plan are the most useful thing you can establish, because they undermine the document the employer intends to rely on.
3. Ask for the objective standard. What specifically must be delivered, by when, measured how, and by whom. A plan that cannot answer this in writing is much weaker as documentation than one that can.
4. Request the resources. Training, coverage, access, or a reduction in competing demands. Requests made in writing and denied are part of the record.
5. Raise the real issue, if there is one, factually and without accusation. If you believe the plan followed your complaint, your accommodation request, or your leave, note the sequence with dates. This can create protected activity if it does not already exist, and it makes the temporal proximity part of the record rather than something you assert later.
6. Keep it professional and short. Assume the document will be read by a judge, a mediator, or opposing counsel, because it may be.

Send it by email so the date is fixed, and keep a copy somewhere other than your work account, since access to that account can end without notice. Copy only the people who belong on it.

Accommodations and Leave

If a medical condition or disability is affecting your performance, a PIP is an appropriate moment to request a reasonable accommodation, and doing so triggers obligations on the employer's part. New York City's Human Rights Law requires a cooperative dialogue with the employee about accommodation requests, and the employer must engage in that process and provide a written final determination. Requesting an accommodation is protected activity, and terminating someone for making the request is unlawful even if the accommodation itself would not have been required.

Similarly, if you are eligible for family or medical leave, or New York Paid Family Leave, using it is protected, and performance criticism that begins on return from leave is a recognized pattern. See disability discrimination.

Should You Look for Another Job?

Almost always, yes, quietly and in parallel. Whatever the intent behind the plan, your position has been documented as deficient, which affects internal mobility and how you will be discussed. Beginning a search costs you nothing and preserves options. It also matters legally: if you are ultimately terminated and bring a claim, you have a duty to mitigate damages, and a documented search strengthens your position on back pay.

Resigning during a PIP, on the other hand, generally forfeits severance, may affect unemployment eligibility, and eliminates most claims. Unless there is a specific reason to leave, letting the process run is usually the stronger position. Where conditions are genuinely intolerable and deliberately made so, a constructive discharge theory may exist, but the standard in New York is demanding, and resigning first and analyzing later is rarely the right sequence.

Unemployment Benefits

An employee terminated for ordinary performance shortcomings is generally eligible for unemployment insurance in New York, since disqualification requires misconduct rather than inability to meet standards. An employee who resigns generally is not eligible absent good cause attributable to the employer. This is a concrete financial reason not to resign under pressure without advice.

Where PIPs Usually End

Most PIPs conclude in one of three ways: the plan is completed and the employee remains, though often with the relationship altered; the employee is terminated at or before the end of the period; or the employee is offered a separation agreement in exchange for a release, which is common where the employer has some concern about the underlying facts.

That last outcome is where the preparatory work pays off. A separation offer is negotiable, and what you have documented during the PIP period, factual corrections, denied resource requests, the sequence relative to your complaint or accommodation request, is precisely what gives a lawyer something to work with. Severance amounts, the reference and non-disparagement terms, the characterization of the departure, continuation of health coverage, and the treatment of equity and bonus are all in play. Note that where a release covers age discrimination claims, federal law requires specific consideration and revocation periods, and additional disclosures apply to group terminations. See severance agreement review and wrongful termination.

Related Pages

See being investigated at work, employment discrimination, retaliation claims, and our practice for managers.

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