Can a Performance Improvement Plan Be Used As Evidence for a Wrongful Termination Claim?

In California, if a PIP is used unfairly or as a pretext for termination after you engage in a protected activity, it may serve as strong evidence of wrongful termination in Orange County.

What Is a Performance Improvement Plan?

A Performance Improvement Plan outlines specific performance goals and expectations that an employee must meet within a defined time frame, usually 30, 60, or 90 days. It often includes:

• A list of performance deficiencies or behavioral concerns.

• Clear goals or metrics the employee must achieve.

• A timeline for improvement.

• Consequences for failing to meet expectations, including possible termination.
  

In theory, a PIP is meant to be constructive—it gives an employee the chance to improve their performance and remain employed. But in practice, some employers misuse PIPs as a paper trail to justify firing an employee they already intend to terminate.

When Does a PIP Cross the Line?

California is an at-will employment state, meaning employers can terminate employees for almost any reason, or for no reason at all. However, employers cannot fire workers for illegal reasons, such as discrimination, retaliation, or exercising their legal rights. A PIP can become part of a wrongful termination case if it was implemented for reasons that violate these laws. For example:

• Retaliation: An employee reports harassment or wage theft, and the employer suddenly issues a PIP to create a false record of poor performance.

• Discrimination: The PIP targets employees based on race, gender, disability, age, or another protected characteristic.

• Whistleblowing: An employee raises safety or compliance concerns, and management responds by placing them on a PIP to discourage further complaints.

• Medical or Family Leave: An employee returning from leave under the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA) is placed on a PIP shortly after returning to work.
  

In these cases, the timing of the PIP and the lack of consistent application can be powerful evidence that the plan was a pretext for unlawful termination.

How to Use a PIP as Evidence in an Orange County Wrongful Termination Claim

If you were placed on a PIP and then terminated, the plan itself—and how it was implemented—can serve as valuable evidence in a wrongful termination case. Here are ways it might be used:

Showing Retaliatory Motive

If the PIP closely followed a protected activity, such as filing a complaint or taking leave, it may suggest the employer’s real motive was retaliation, not performance concerns.

Demonstrating Inconsistent Treatment

If other employees made similar mistakes but were not placed on a PIP, it can demonstrate discrimination or unfair targeting.

Revealing a Lack of Good Faith

If the employer offered unrealistic goals, withheld necessary resources, or refused to meet with you during the PIP period, it may show the plan was not a genuine effort to improve performance.

Contradicting Past Evaluations

If you previously received positive performance reviews but were suddenly placed on a PIP without warning, that discrepancy may weaken the employer’s justification for termination.

Together, these factors can establish that the PIP was part of a larger pattern of unlawful conduct.