Develop, implement PIPs properly to minimize risks of employment-related claims

To prove a claim of work-related discrimination or retaliation, employees must prove they suffered an “adverse employment action.” A recent federal appeals court decision provides employers with guidance about whether disciplinary action less than termination can constitute an adverse employment action. While the court didn’t adopt a clear-cut rule, its analysis can be helpful to employers in creating and issuing performance improvement plans (PIPs).

Longtime employee alleges PIP amounted to adverse action

Joanne Walsh was employed by HNTB for more than 25 years and resigned in September 2020. Almost 10 months before her resignation, she was placed on a PIP that addressed coworker complaints against her, some of which indicated she could be “an impediment to the success/performance of the office.” The PIP also emphasized her failure to improve her work performance, which had been the subject of her prior performance review. 

Walsh’s PIP was set for three months and provided guidance on what her employer’s performance expectations were moving forward. At the end of the three-month period, two of her supervisors concluded she had barely met the expectations.