A performance improvement plan (PIP) is a written plan that identifies an employee's specific performance gaps, sets measurable goals and a deadline for improvement, and describes the support the employer will provide. Used well, a PIP gives a struggling employee a fair chance to improve and gives the employer a clear record if they don't. Used poorly, it becomes Exhibit A in a retaliation or discrimination lawsuit, because a PIP that's poorly timed, vaguely written or inconsistently applied doesn't protect a termination decision.
Ask most employees what a PIP means and they'll tell you it means they're about to be fired. That reputation is earned. Many employers use PIPs as a box to check on the way to a decision already made, with goals no one could meet, check-ins that never happen and a replacement posting that goes up before the plan ends. Employees know this, and so do plaintiffs' lawyers, judges and juries. When a PIP looks like a formality, it stops being evidence of a fair process and starts looking like evidence of pretext.
Below are the 15 mistakes we see most often (before the PIP is written, in the document itself, while it's running and around protected activity), followed by a checklist of what a legally sound PIP should include.
Key takeaways
- To draft a PIP, start with the facts: list each performance gap with concrete examples and dates, and tie it to the job description and the standard peers are held to.
- Make every goal measurable and every deadline realistic: most PIPs run 30 to 90 days, matched to how often the work can actually be measured.
- Spell out the support and the consequences: the training or coaching you'll provide, a check-in schedule, what happens if goals aren't met, and that the PIP doesn't change at-will employment or excuse other duties.
- Decide whether a PIP is the right tool first. Don't use one when the decision is already made, for misconduct, or when the employer never gave the employee the training or tools to succeed.
- Run the plan the way it's written. Missed check-ins, undelivered support and careless manager comments undercut it.
- Check for retaliation risk before issuing it. A PIP that follows a complaint, a leave or accommodation request, or an injury invites a claim.
What Should a PIP Include? A Checklist
A legally sound PIP is specific enough that a neutral reader could tell whether the employee met it. Before issuing one, confirm it includes:
- The specific performance gaps, with concrete examples and dates, not general impressions.
- The expected standard, tied to the job description and the same standard peers in the role are held to.
- Measurable goals for each gap, such as error rates, deadlines met or tasks completed.
- A realistic timeline, commonly 30 to 90 days, matched to how often the work can actually be measured.
- The support the employer will provide, such as training, resources or coaching, and who is responsible for it.
- A check-in schedule, with a commitment to document each meeting in writing.
- Consequences, stating that failure to meet the goals may lead to discipline up to and including termination, that the employer may act before the end date if performance worsens or other issues arise, and that the PIP does not change at-will employment.
- A statement that all other job duties, standards and policies still apply.
- An acknowledgment line confirming the employee received the PIP (not that they agree with it), with space for the employee's comments.
- A statement that the expectations continue after the PIP ends, and that falling below them again may lead to further discipline, up to and including termination, without a new PIP.
CHRO reviews PIPs before they're issued as part of our Employee Relations Support Program and our Outsourced CHRO Program.
When Should You Use a PIP? 6 Mistakes Before the PIP Is Written
Using a PIP as a Formality for a Decision Already Made
If leadership has already decided to terminate, a PIP adds risk rather than reducing it. Emails, meeting notes, a replacement job posting or a manager's offhand comment can show the outcome was predetermined, and the PIP becomes proof of pretext rather than proof of fairness.
Using a PIP When a Written Warning Is the Better Tool
PIPs take real time and effort: regular meetings, coaching, documentation at every step. They make the most sense for employees who excel in some areas but fall short in others, and whom the employer genuinely wants to keep. For an employee who is simply deficient across the board, or for a single clear-cut issue like attendance, a written warning stating that termination may follow without sustained improvement is often more appropriate. Choosing the wrong tool wastes time and can create expectations the employer didn't intend.
Using a PIP for Misconduct Instead of Discipline
Harassment, theft, violence, falsifying records or serious safety violations aren't performance problems. Treating them as something to "improve" over 60 days sends the wrong message, can delay a necessary investigation and may make later discipline look inconsistent.
Blaming the Employee for Gaps the Employer Created
Before claiming an employee is deficient, employers need to confirm they did their part. Many PIPs fall apart because the record shows:
Expectations were never set or communicated in writing
The employee never received the same training as others in the role, or wasn't trained on a new system or process
There was little or no supervision, feedback or review of their work
The employee lacked the tools, access or information needed to do the job
The workload was heavier than peers', or the role changed without adjustment
No one on the team is meeting the same standard
If any of these is true, the "performance problem" may really be a management, training or staffing problem, and a court or jury may see it that way too.
Surprising the Employee With a PIP
A PIP that arrives with no prior feedback, especially after positive reviews, raises an obvious question: what really changed? If the answer is a recent complaint, or a leave or accommodation request, that can be a problem.
Putting Some Employees on PIPs but Not Others
If one employee gets a PIP for missed deadlines while a coworker with the same record gets a pass, the difference will be examined. When the two employees are in different protected groups, that inconsistency can become evidence of discrimination. Likewise, if you use a PIP for one employee, but move to terminate another employee with the same deficiencies, that can also be a problem if the terminated employee challenges the lawfulness of their termination.
For more on the performance process before a PIP, see our guide to handling employee performance issues without legal risk.
How to Write a PIP: 5 Drafting Mistakes
Writing Vague or Subjective Goals
"Improve your attitude," "be more professional" and "show more ownership" can't be measured, so there's no objective way to show the employee failed. Subjective words like "fit," "polish" and "aggressive" are also easy to attack as cover for stereotypes, a risk we cover in Is DEI Legal? Part 3.
Setting Goals or Timelines Designed to Fail
Standards no one on the team meets, a two-week window for work measured quarterly, or a list of new goals that didn't exist before the PIP all suggest the plan was never meant to succeed.
Accidentally Giving Up At-Will Employment
A PIP that says "you have 90 days to improve" can be read as a promise. Employees may argue the employer was required to give them the full term before acting, or that the PIP changed their at-will status. Some courts have treated handbooks and similar documents as enforceable promises when they lack clear disclaimers; New Jersey's Supreme Court did so in Woolley v. Hoffmann-La Roche (1985). A poorly worded PIP can leave an employer stuck waiting out a plan even when performance gets worse or a new problem comes up.
Not Stating That Other Duties and Policies Still Apply
A PIP focuses on specific areas, but that doesn't mean the employee gets a pass on everything else. If the PIP doesn't make clear that all other job duties, standards and policies still apply, an employee may argue that discipline for an unrelated issue during the plan was unfair or inconsistent.
Not Stating That the Expectations Continue After the PIP Ends
Many PIPs close with “the employee successfully completed the plan” and nothing more. That leaves room for an employee to slip back into the same problems a month later and argue they deserve a fresh warning, a new PIP and another 60 or 90 days to improve. A PIP should state that its standards are ongoing expectations of the job, not temporary targets, and that if performance falls below them again after the plan ends, the employer may move directly to further discipline, up to and including termination, without a new PIP.
Repeat that point in the written notice when an employee completes the plan, and keep documenting performance through regular reviews so any relapse is supported by the record. If your handbook promises progressive discipline or a PIP before termination, make sure its language allows you to terminate if the same performance issues arise after the PIP was successfully completed.
How to Manage a PIP: 3 Mistakes During the Plan
Skipping Check-Ins and Promised Support
A PIP that promises weekly meetings, training or coaching, and then doesn't deliver, is one of the easiest to attack. So is one with no written record of progress between the start and the end date.
Moving the Goalposts Mid-Plan
Adding new goals, raising standards or shortening the timeline mid-plan, without a documented business reason, suggests the employer was looking for a way to make the employee fail.
Careless Manager Comments During a PIP
A manager who tells coworkers the employee is "on the way out," vents about the employee's complaint, or says "this is what happens when you go to HR" can turn a defensible PIP into a strong retaliation case.
See documentation that protects employers from lawsuits for what a defensible record looks like.
Can a PIP Be Retaliation? 2 Mistakes Involving Protected Rights
Retaliation is the most frequently filed charge with the EEOC, and PIPs show up in many of those cases. Under Burlington Northern & Santa Fe Railway Co. v. White (2006), retaliation covers any action that "well might have dissuaded a reasonable worker" from complaining about discrimination. Courts differ on whether a PIP alone meets that standard, but a PIP that leads to termination, a lost bonus or a missed promotion can, and even when the PIP alone isn't enough, it's often the evidence that ties a complaint to the final decision.
Issuing a PIP Right After Protected Activity
The most dangerous PIP is one that closely follows any of the following conduct by the employee:
An internal or EEOC complaint of discrimination, harassment or retaliation
A request for a disability, pregnancy or religious accommodation
An express or implied request for FMLA or other protected leave, or a return from leave
A workplace injury or workers' compensation claim
A wage complaint or safety report
Discussing pay or working conditions with coworkers, protected by the NLRA for most non-supervisory employees
Serving as a witness in a government investigation
Courts call this "temporal proximity." A short gap between protected activity and a PIP, combined with other evidence, can suggest the activity was the real reason. Performance can still be addressed after a complaint, but usally only if the problem was well documented beforehand (assuming it arose before the protected activity) and the employer is treating the employee the way it treats others. See the EEOC's retaliation guidance for how the agency evaluates these claims.
Ignoring Disability, Pregnancy and Leave Issues
If performance dropped because of a medical condition, pregnancy or a need for leave, a PIP may not be the right first step. The ADA and the Pregnant Workers Fairness Act may require the employer to begin the interactive process and consider an accommodation. The FMLA prohibits counting protected leave against the employee. A PIP that ignores these obligations can turn a performance case into an interference, failure-to-accommodate or discrimination claim. See our guide to the ADA interactive process.
State law adds another layer. Pennsylvania, New Jersey, Delaware, Maryland and New York each have their own anti-discrimination and anti-retaliation laws, several of which cover much smaller employers than Title VII, and New Jersey's Conscientious Employee Protection Act (CEPA) gives broad protection to whistleblowers.
Planning a PIP for an employee who recently complained, requested leave or reported an injury? Stop and get a second opinion first. CHRO's employee relations team can assess the risk before you act.
Frequently Asked Questions About Performance Improvement Plans
Are performance improvement plans legally required?
No. Federal and state laws generally don't require PIPs, and most employment is at will. But if your handbook or a contract promises a PIP or progressive discipline, skipping it can create risk. And a well-run PIP is strong evidence that a later termination was about performance. Note: A Collective Bargaining Agreement (CBA) may require an employer to use a PIP; if your workforce is subject to a CBA, review any language related to progressive discipline and termination.
Can an employer issue a PIP after an employee files a complaint?
Yes, but it's one of the highest-risk moments to do it. The performance problem should be documented before the complaint, and the PIP should be consistent with how others are treated. Have it reviewed before issuing it.
Does an employer have to wait until the PIP ends to terminate?
It depends on how the PIP is written. A PIP that reads like a guaranteed improvement period can make early termination harder to defend. This is one of the most common drafting problems we see.
Should every struggling employee get a PIP?
No. PIPs are best for employees who are strong in some areas, need to fix specific gaps and are worth keeping. For an employee who is struggling across the board, or for a single clear-cut issue like attendance, a written warning is often the better tool. Misconduct should be handled through discipline, not a PIP.
How long should a performance improvement plan last?
Most PIPs run 30 to 90 days. The right length depends on how quickly improvement can be measured: daily tasks may show progress in 30 days, while work measured monthly or quarterly needs longer. A timeline too short to show real improvement suggests the plan was designed to fail.
Can an employee refuse to sign a PIP?
Yes. A signature should only acknowledge that the employee received the PIP, not that they agree with it, and the form should say so. If the employee still refuses, note the refusal on the document, have a second manager or HR witness it, and move forward with the plan. Give the employee a chance to add written comments.
What happens at the end of a PIP?
There are three usual outcomes: the employee meets the goals and the PIP closes, the PIP is extended because progress is real but incomplete, or the employer moves to discipline or termination. Whatever the outcome, document it in writing with reference to each goal. If the employee succeeded, say so clearly, and keep monitoring performance through normal reviews.
The Bottom Line on Performance Improvement Plans
A PIP can be one of an employer's strongest defenses or one of its biggest liabilities. The difference is rarely the template. It's whether the employer chose the right tool, did its part before blaming the employee, wrote a plan that could be met, ran it the way it promised, and kept protected activity out of the picture. Before every PIP, and every termination that follows one, ask: what changed, when, and would we do the same for anyone else?
Want a second set of eyes on a PIP or termination decision? CHRO is an attorney-led fractional HR firm. Through our Outsourced CHRO program and manager training and coaching, we review PIPs and terminations before they happen and train managers to avoid these mistakes. Complete our Workplace Diagnostic Questionnaire to book a free preliminary HR compliance review.
This post provides general information, not legal advice. Employment law varies by state and changes frequently; consult employment counsel about your specific situation.
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About CHRO, LLC
CHRO, LLC is an attorney-led fractional HR firm based in the Philadelphia suburbs. We help employers in Pennsylvania, New Jersey, Delaware, Maryland, New York and nationwide build performance management and discipline processes that hold up: clear expectations, consistent documentation, well-run performance reviews, written warnings and PIPs, and termination reviews before a decision becomes a retaliation or discrimination claim.
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