Performance Improvement Plans (PIPs) just got a little riskier for employers—and it’s about time we take a closer look at how and why we use them.
A recent First Circuit decision, Walsh v. HNTB Corp., applies the Supreme Court’s updated standard from Muldrow, which lowered the threshold for what qualifies as an “adverse employment action” under Title VII. While the employee in Walsh ultimately did not prevail—because her PIP didn’t alter her duties, compensation, or promotional opportunities—the broader implication is clear: some PIPs may now meet the standard for actionable harm.
That should get every HR professional’s attention.
The Real Issue: Misusing PIPs
Let’s be candid—too often, PIPs are treated as administrative stepping stones to termination. That’s not just problematic from a legal standpoint; it’s fundamentally at odds with what a PIP is supposed to be.
A PIP is not a write-up. It’s not a paper trail exercise. And it certainly should not be an exit strategy.
At their best, PIPs are tools for development.
They are designed for employees who are capable, valuable, and worth investing in—but who need structured support to meet performance expectations. When we use PIPs as a pretext to manage someone out, we undermine both their purpose and our credibility as HR professionals.
Frankly, this is a pet peeve for many in our field—and rightly so.
What Changed Legally?
The Muldrow standard lowers the bar for employees to claim that an action materially impacted their employment. In practical terms, this means:
- Actions that don’t involve pay cuts or demotions may still qualify as adverse
- Changes to responsibilities, expectations, or career trajectory could now carry more legal weight
- The context and intent behind employment decisions matter more than ever
In that environment, a poorly constructed or bad-faith PIP becomes more than just ineffective—it becomes a potential liability.
What This Means for HR Practice
The lesson here isn’t entirely new—but it carries new urgency.
If you’re authoring or approving PIPs, consider the following guardrails:
1. Anchor Everything in Objective, Documented Performance Issues
No surprises. No retroactive justifications. The performance concerns outlined in a PIP should be clearly documented, communicated, and consistent with prior feedback.
2. Avoid “Blindsiding” Employees
A PIP should not introduce entirely new expectations or responsibilities that were never previously discussed. Employees should recognize the issues being addressed.
3. Don’t Limit Opportunity Under the Radar
Be cautious about language or structures that implicitly or explicitly restrict advancement, visibility, or growth. Those elements may now contribute to an “adverse action” claim.
4. Write in Good Faith—Always
This is the most important principle. A legitimate PIP must include:
- Clear expectations
- Measurable goals
- Realistic timelines
- Genuine support for improvement
If the outcome is predetermined, it’s not a PIP—it’s documentation for termination, and it should be handled as such.
A Practical Mindset Shift
Here’s a simple but powerful rule of thumb:
Treat every PIP you write as if it will be labeled “Plaintiff’s Exhibit 1.”
Because one day, it might be.
That doesn’t mean we stop using PIPs—it means we use them correctly. When done right, they are one of the most effective tools we have for employee development and performance recovery. When done poorly, they expose organizations to risk and erode trust.
The legal landscape is evolving. Our practices need to evolve with it.
Let’s use PIPs the way they were intended: as a bridge to improvement—not a path to the exit.
