Performance Improvement Plans (PIPs) look simple. An employee is struggling, so you write down the problems, set expectations, give the employee time to improve, and keep a record of how things progress. The employee either meets those stated expectations, or they don't. In practice, however, PIPs are one of the most common places where a manageable performance issue turns into a legal claim.
A PIP is not a legal shield for a business, and it should not be the automatic response to every underperforming employee. It is one tool among several, and the first job is deciding whether it's the right one.
Start With What You're Actually Trying to Do
HR usually gets the question as "Should we put this person on a PIP?" The better starting point is what management actually wants. Some managers genuinely want the employee to succeed. Some are delivering a final warning after repeated problems. And some have already decided the employee needs to go.
That last group is where PIPs do the most damage. If the decision to terminate has already been made, running the employee through 60 or 90 days of a supposedly genuine improvement process does not strengthen the record. It weakens it. Emails, comments to coworkers and the manager's own testimony tend to reveal that the outcome was decided before the PIP was even started. The PIP looks less like an opportunity for the employee and more like a paper trail built to justify a business decision. If a legitimate termination decision has been made, it is usually better to move forward with letting the employee go and document the reasons the decision had been made. This presumes, of course, that the unsatisfactory performance had been brought to the employee's attention in some other way so the employee is not surprised by a termination conversation.
When considering whether a PIP is appropriate, it also should be asked whether the employee has ever previously been clearly told there is a performance problem. A formal PIP generally should not be the first time an employee hears that their performance is deficient. If it is, someone will eventually ask why no one said anything sooner, and that someone may be a lawyer or a judge.
Lastly, consider whether the performance issues can get fixed by providing the employee with time to do so. Sometimes, there are abilities and characteristics needed for a job that the current employee simply doesn't have and isn't going to develop no matter how much time is provided.
How the Employee Will Hear It
Whatever the employer intends, most employees hear "PIP" and think "I'm being fired." An employee who believes the outcome is already decided starts asking a different question: Why me? Was it because I complained about my manager? Because I asked for leave? Because I disclosed a medical condition? Because of my age, race, sex or religion?
This is especially so if the performance issues had not previously been raised with the employee. If no one says otherwise, employees usually think their performance is fine. When hit with a PIP out of the blue, the employee begins looking for other reasons for what they see as discipline.
A PIP does not prevent an employee from claiming that the PIP was imposed for unlawful reasons. It often becomes part of those claims. That is why the analysis of the situation needs to happen before the PIP is issued, not after the employee hires a lawyer.
Consistency Doesn't Mean Identical
Before issuing a PIP, look at how genuinely similar problems have been handled. If one employee is put on an improvement plan for something others have gotten away with, that difference can become the centerpiece of a discrimination or retaliation claim.
That doesn't mean everyone must receive the same discipline. The seriousness of the problem, prior warnings, and job responsibilities can all justify different treatment. The question is whether you can explain the difference. If you can't, look harder at the decision before creating the PIP document. Similar situations, and everything being equal, should be treated the same.
Look at who is driving it, too. If the manager behind the PIP has an issue with the employee that goes beyond performance, a sign-off from HR or a senior leader will not clean it up.
Write It So It Can Be Measured, and Met
"Needs a better attitude" and "must improve communication" tell the employee nothing, and they won't help the employer later. A useful PIP says what happened, what was expected, what fell short, what specifically has to change and how improvement will be measured.
Keep it to a handful of meaningful expectations, not an inventory of everything the manager has ever disliked. Make the goals achievable. Targets no one in the role could hit, or targets that shift halfway through, are the easiest way for an employee to argue the plan was designed to fail.
Be honest about outcomes. The plan should say the employee may succeed, the plan may be extended, or employment may end. It should not suggest the employee is guaranteed a job through the end of the plan period.
Then the manager has to actually run it. Check-ins that never happen, feedback that never gets written down, and a manager who goes quiet for six weeks and then declares failure, make for a very bad set of facts.
Watch the Calendar
Suppose an employee complains about harassment in March and is put on a PIP in April. Complaining does not make an employee untouchable. And, the employer has not lost the ability to address real performance problems. But the timing invites an obvious question: why now?
The same is true when a PIP closely follows a leave request, a disability disclosure or a request for accommodation. The closer the dates, the more the employer needs to show that the performance concerns were real, documented, and raised with the employee before the protected activity so the PIP is the next step in an already started performance management process.
Retaliation claims deserve extra care here. For retaliation, the question is roughly whether the employer's action would discourage a reasonable employee from complaining. A PIP issued right after a complaint can meet that bar far more easily than it would in a discrimination case.
When Something Changes Mid-Plan
An employee halfway through a PIP says, "I need medical leave," or "I have a disability," or "I think my manager is discriminating against me."
The employer needs to address that situation and potentially put the plan on pause. The manager should not push forward as if nothing happened and should not try to handle it alone. Bring in HR and decide whether employment counsel should be involved. A disability disclosure may require a conversation about accommodation. Time on protected leave generally should not count against the PIP period. A discrimination complaint needs to be looked into, and it may make sense for someone other than an accused manager to oversee the rest of the plan.
When an employee returns from leave mid-plan, don't simply restart the clock where it stopped. Review where things stand first with HR and potentially with employment counsel.
What the Courts Are Saying
In March 2026, the First Circuit decided Walsh v. HNTB Corp. The employee was placed on a three-month PIP, completed it and stayed on for about ten more months before resigning and suing for age discrimination. The court held that her PIP did not, by itself, support a discrimination claim.
The reasoning is more useful than the result. The court refused to adopt a blanket rule either way regarding whether being put on a PIP can support a discrimination claim. Some PIPs are simply documented coaching which would not do so. Others change pay, title or duties, or cut off opportunities, and those can support a claim. Walsh's PIP did none of those things. That distinction is sharper after the Supreme Court's 2024 decision in Muldrow v. City of St. Louis, which made it easier for employees to show that a change in their working conditions was harmful enough to sue over.
Three cautions before reading too much into Walsh. It is binding only in the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico), and state laws can be broader. It addressed discrimination, not retaliation. And a PIP that can't support a claim on its own can still become key evidence if the employee is later fired. In that case the termination is the claim and the PIP is often the first exhibit.
The label "PIP" tells you very little. What the plan actually does and what actions the employer took or didn't take is what counts.
When the Employee Succeeds, Say So
Employers tend to be careful about documenting failure and casual about documenting success. If an employee completes a PIP successfully, put it in writing and formally close it out.
If problems come back months later, don't automatically dust off the old plan or treat termination as the next step. Look at what happened, how serious it is, whether it's really the same issue, and how the employee has performed since.
The Bottom Line
The most common PIP mistake is assuming that having one is safer than not having one. Sometimes a PIP is the right call. Sometimes coaching, a written warning or additional training fits better. And sometimes a legitimate decision has already been made, or should be being made, and the proper move is to act on it.
The document is the easy part. The judgment behind it is what protects the employer.
Greenwald Doherty LLP advises employers on performance management, documentation and employment law compliance. When the facts are complicated, the best time to call is before the paperwork is written.
