A performance improvement plan issued to an employee did not constitute an adverse employment action under the Supreme Court’s Muldrow standard, the First Circuit held March 13.
The PIP imposed no new duties, changes in pay, limits on mobility, or modifications to the employee’s terms or conditions of employment, the court found. The court characterized the PIP as “documented counseling” rather than actionable conduct, even under Muldrow’s broadened definition of adverse action. Consequently, the First Circuit upheld the lower court’s dismissal of the plaintiff’s age discrimination claim.
Employers may lawfully issue PIPs — even if they are adverse actions — when legitimate, nondiscriminatory reasons support them. Even after Muldrow, not every PIP qualifies as an adverse action; employers must change the employee’s terms or conditions of employment for liability risk to attach.
When issuing a PIP, an employer should contemporaneously document its legitimate reasons for implementing it. Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can explore best practices for PIPs during Conversation Corners.
CWC members can read more here.