Signing Performance Improvement Plans and Terminations: NYC Employees

By David DeToffol | January 17, 2025
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person adding their signature

Few workplace documents provoke as much anxiety for employees as a Performance Improvement Plan (PIP). If you have been placed on a PIP, you may wonder what your employer’s real intentions are. Is it a sincere effort to help you improve, or is it a final step before termination? In New York City, the stakes can be high. Employers often use PIPs to shield themselves from legal claims. Meanwhile, employees sometimes fail to see the bigger picture before it is too late.

What Is a Performance Improvement Plan (PIP)?

A Performance Improvement Plan is usually a written document that outlines where an employer claims an employee has fallen short of expectations. It also sets a timeline for progress and warns of consequences if the outlined goals are not met. Employers may have different formats, but the common elements include:

  • Specific statements of alleged deficiencies
  • Detailed targets for the employee to meet within a specified period (often 30 to 90 days)
  • Potential follow-up reviews and clear notice of possible disciplinary actions

Some companies present a PIP as a positive roadmap for improvement. At times, that is genuine. But many employees see PIPs as a warning that management may already be on the path to termination. The tension often arises when a PIP appears suddenly, without previous warnings or documentation of any performance shortfalls.

Why Employers Use PIPs to Protect Themselves

PIPs can be a crucial part of an employer’s legal strategy. When facing allegations of discrimination, retaliation, or wrongful termination, employers want to show a legitimate reason for firing someone. A well-documented PIP serves as evidence that the employer gave fair warning and tried to address the problem before resorting to termination.

Creating a Paper Trail

A Performance Improvement Plan often goes into an employee’s personnel file. Employers know that, if a dispute arises, they can point to the PIP as an official record of ongoing performance concerns. If those concerns were never recorded, courts and juries can become skeptical about the employer’s true motivation.

Demonstrating Fairness

Employers frequently argue, “We gave the employee a formal warning and clear goals to fix the problem.” This can make it harder for an employee to claim they were blindsided. If the case reaches litigation, the employer will likely point to the PIP as a sign of good faith, even if the employee sees it as unfair.

Reducing Legal Exposure

Because New York City law affords strong protections against discrimination and other unlawful actions, employers often adopt strategies to minimize liability. Documentation through a PIP can undercut an employee’s claim that the employer acted out of bias. Employers will present the plan as a step-by-step process aimed at improvement rather than a sudden, targeted termination.

Case Example: Pryor v. Seyfarth, Shaw, Fairweather & Geraldson

The Seventh Circuit case Pryor v. Seyfarth, Shaw, Fairweather & Geraldson, 212 F.3d 976, 979 (7th Cir. 2000), shows how courts look at performance documentation. Although it was not decided in New York, it underscores how a judge might analyze your PIP. In that case, the court reviewed whether the employer had sufficient documentation to prove the claimed performance issues were real. When documentation is thorough and consistent, courts are more likely to believe the employer’s reasons for termination. When it is missing or contradictory, courts can suspect pretext.

Refusing to Sign a PIP: How It Can Affect Litigation

Many employees fear that signing a PIP means agreeing to the employer’s allegations. Others worry refusal will make them look insubordinate. The truth is that there is no one-size-fits-all answer. Each option carries potential risks, and the outcome can be unpredictable. This article is not advising any particular approach; rather, it outlines possible implications if a dispute ends up in court.

Employer’s Documentation

  • Signed Acknowledgment: From the employer’s viewpoint, a signed PIP proves the employee was informed of specific performance issues and given a path to correct them.
  • Refusal to Sign: If the employee refuses, the employer often notes this refusal in the personnel file. They may characterize refusal as insubordination or unwillingness to engage with improvement measures.

Perception of Cooperation

  • Evidence of Good Faith by Employer: In litigation, employers typically present PIPs to show they tried to work with the employee to address documented problems.
  • Employee’s Refusal: The employer might argue that refusal to sign shows the employee would not cooperate or accept help, supporting the idea that any subsequent firing was legitimate and unrelated to discrimination or retaliation.

Employee’s Arguments

  • Challenging Accuracy: An employee may claim the PIP is factually incorrect or that performance problems were fabricated. They might present past reviews or records of good performance.
  • Explaining the Refusal: If the employee refused to sign, they might argue it was a good-faith decision to reject false allegations. They could also highlight other workplace factors, such as prior discrimination complaints or whistleblower activity, to show the PIP was really a pretext.
  • Context Matters: Courts often look at the broader pattern. A refusal to sign might play out differently if the employee has documented a history of unlawful treatment or if the employer’s recordkeeping is suspiciously thin.

Refusal to Sign Under New York Law

  1. At-Will Employment
    • New York is an at-will employment state. An employer can terminate an employee for almost any reason—or no reason at all—unless the reason is legally prohibited (such as discrimination or retaliation for protected activities).
    • If an employee refuses to sign a PIP, it can serve as a lawful basis for termination in many situations, especially if the employer frames the refusal as rejecting corrective action.
  2. Outcome Can Be Hard to Predict
    • Refusal might undermine an employee’s case if a court views the employer as having given a fair chance to improve.
    • However, refusal might have less negative impact if the employee can show the PIP was full of inaccuracies or timed suspiciously after a complaint of discrimination.

Since each case is different, there is no blanket guidance on whether to sign or refuse a PIP. What may help one person’s case could harm another’s, depending on the totality of the evidence.

Considering a Consultation?

If you are in the middle of a Performance Improvement Plan or suspect your employer is using performance documentation to hide an illegal motive, you should consider speaking with an attorney. At DeToffol & Gittleman, we understand how employers sometimes misuse PIPs to bolster their own legal defense. Our employment law firm in NYC offers consultations by video, phone, or in person.

You do not have to navigate this alone. An NYC employment lawyer can help you determine if the PIP is standard workplace procedure or a sign of something more serious. If you believe discrimination or retaliation is at play, contact us to explore your options. Visit our contact page at:

**https://ddtlaw.com/contact/**

Disclaimer

This article is intended for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Laws can vary by jurisdiction and often change. For advice specific to your situation, consult a qualified employment lawyer in your area. If you are located in or near New York City, a NYC employment lawyer can provide guidance tailored to the facts of your case.