The Usual Questions

Know when to set-up a Performance Improvement Plan when an employee is not performing at expected levels.

The other day I got a call from an old friend Bill. He runs a small business with about 40 employees. Bill is a good guy who generally knows what he can and cannot do lawfully, but he sometimes calls me to make sure he’s right.

Bill told me he has a long time employee named Mark that Bill is thinking about letting go. According to Bill Mark is no longer able to do the work. I began asking Bill the usual questions.

“What is Mark’s race?”“He’s white.” That pretty much eliminates any sort of race or color discrimination claim. Let’s see about the rest of Title VII.

“Do you have any females that do what Mark does?” “No. He’s a field laborer in my concrete business.”That takes care of sex discrimination.

“Do you know Mark’s religion?” 

“No, I don’t.  I know he doesn’t go to my church.”

“But, that isn’t a factor here, is it Bill?”

“No.” Okay, that eliminates religious discrimination.

“Do you know Mark’s national origin?” “I assume he’s American.” 

Then there is no national origin discrimination either.  That clears any Title Vii issues.  Let’s look at other possible issues.

“Is Mark disabled in any way?” “Not really.  He’s just much slower than he used to be.” “Bill, do you perceive that this is due to a disability of any kind?”  “No, I think it is just age, but he just isn’t getting the work done.” 

Well if he does not claim a disability and you don’t perceive him as disabled, he doesn’t have an Americans with Disabilities Act claim.

“How old is Mark?”  “I think he’s about 45 years old.” 

Then he is covered by the Age Discrimination in Employment Act. This is probably the greatest risk for the concrete contractor as the workforce gradually ages.

“Have you documented Mark’s inability to do the job?”  “Not really.  My crew leaders tell me that he’s just not cutting it. And on a couple of recent jobs we incurred overtime expenses that were caused by Mark’s slow performance – at least that’s what the crew leaders tell me.”

“Does Mark have a problem with any particular crew leader?”  “No, all of the crew leaders think that Mark is the slowest worker and each tries to avoid having Mark on his crew.”

“Have you had any discussions with Mark about his performance problems?”  “No, I am just trying to be proactive and look out for my business.”

Okay, we have a white Caucasian American who is over 40 with no apparent disabilities or religious affiliation and whose performance failings have not really been documented.  I recommended that Bill not fire Mark yet. Instead, I suggested that Bill put Mark on a “Performance Improvement Plan” with a defined goal and deadlines that they jointly discussed and agreed upon. This gives Bill the chance to document Mark’s problems and may lead Mark to the conclusion that he can no longer do the work. 

Mark presents a situation that more and more concrete contractors will face as their work force ages. Although some workers will get injured, you would like to minimize this. Still more workers will just slow down. As the business owner, you have to decide how much is enough and where to draw the line. In doing so, it is vital that you be consistent and fair.

If possible, when you use a performance improvement plan, set realistic, attainable, measurable goals and deadlines. Consider reducing these to a written document so the worker can sign and keep a copy. Follow-up is critical in these circumstances. If the worker is permitted to “skip” a deadline, you will lose the ability to effectively discipline and/or manage the worker’s performance.

Documentation is also critical.  As workers slow down, you need to have some objective measurement of the decline in performance. Otherwise, you are open to liability for (usually) age discrimination. Essentially, the worker claims that you are eliminating workers over 40 years of age in favor of younger, stronger workers. If you cannot demonstrate the worker’s decline in performance, the risk of losing a lawsuit is much higher. Absent an objective measurement, it is your word against your worker’s word, and juries are likely to believe that especially in the concrete industry, employers prefer younger, stronger workers in every case.

Using a formal plan can also lead the worker to quitting voluntarily, which virtually ensures that there will be no lawsuit. Of course, you need to have an honest, candid discussion with the worker as you set the plan terms.

David C. Whitlock has over 25 years experience in business immigration, compliance, employment counseling and training. Whitlock can be reached at (404) 626-7011 or at