You just told an employee they need to improve or they’re out. Now what?
Here’s what I see happen constantly with founders at this stage: the conversation goes fine. Everyone nods. A vague plan gets written down, maybe in an email, maybe not at all. Ninety days later, the employee still isn’t performing, you terminate them, and suddenly they’re claiming discrimination or retaliation.
The termination itself probably wasn’t the problem. The documentation was.
Why “Be More Communicative” Isn’t a PIP
A performance improvement plan only protects you if it can survive scrutiny later, either from a lawyer, an unemployment hearing, or a judge. That means it needs three things a lot of founder-written PIPs skip entirely.
Specific. “Improve communication” or “be more of a team player” means nothing when someone reviews it after the fact. What behavior, exactly, needs to change? What does the problem look like in practice?
Measurable. How will you and the employee both know if they’ve succeeded or failed? If the standard is subjective, you’ve built a document that can be argued against.
Time-bound. A PIP without a clear end date isn’t a plan. It’s a warning that never resolves, which makes it look arbitrary when you eventually act on it.
Miss any of these three, and you’ve written a document that looks less like a genuine effort to help someone improve and more like paperwork created to justify a decision you’d already made. That’s exactly the read a plaintiff’s attorney will give it.
What This Actually Looks Like
Let’s say you run a 7-person company and one of your account managers keeps missing client deadlines. A weak PIP says: “Needs to be more reliable and responsive to clients.”
A defensible PIP says something closer to: “Client deliverables must be submitted by the agreed deadline in at least 90% of engagements over the next 30 days, tracked weekly via our project management tool. Missed deadlines will be documented with the reason and client impact. We’ll check in every Friday to review progress.”
Notice the difference. The second version gives the employee an actual target, gives you a paper trail, and gives both of you a shared understanding of what success or failure looks like. If this employee is later terminated for missing three more deadlines during that window, you have a clean, defensible story: here’s the standard, here’s the timeline, here’s what happened.
The Follow-Through Matters As Much As the Plan
A great PIP with no documented check-ins is almost as weak as no PIP at all. If you say you’ll review progress weekly, actually write down what happened at each check-in, even if it’s two sentences. “Met with employee 6/14. Two deadlines missed this week, both communicated in advance. Discussed root cause.” That single line, repeated consistently, builds the record that protects you if this ends in termination.
If you’re in California, this gets even more layered. Claudia, who handles employment matters for our clients there, sees a lot of PIPs that are legally fine everywhere else but miss California-specific requirements around documentation and notice. Worth knowing before you draft anything if that’s where you’re operating.
The Real Cost of Getting This Wrong
At your stage, you probably don’t have an HR department reviewing every termination decision. That’s normal. But it also means the burden of building a defensible record falls entirely on you, in the middle of running everything else.
A rushed, vague PIP takes ten minutes to write and can cost you tens of thousands of dollars to defend later if it turns into a wrongful termination claim. A specific, measurable, time-bound PIP takes maybe thirty extra minutes and gives you real protection if things end badly.
Have you had to put someone on a formal plan before? I’d be curious what that process looked like at your company, and happy to talk through what a stronger version could have included.
The Garcia-Zamor Law Firm provides outsourced in-house counsel combining business law and intellectual property expertise. Led by Ruy Garcia-Zamor (founder and business strategy expert), Elliott Alderman (IP specialist with 40+ years experience), and Claudia Castillo (employment law specialist), our team serves growing companies with strategic legal leadership. Learn more at garcia-zamor.com or call (410) 531-9853.
