Performance Improvement Plan (California)

CALIFORNIA PERFORMANCE IMPROVEMENT PLAN

Mandatory California Practice Warnings (Read Before Issuing)

1. At-Will Employment Remains the Baseline. Cal. Lab. Code § 2922 establishes the presumption that employment of no fixed period may be terminated by either party at will. A PIP should NOT (a) promise continued employment if criteria are met, (b) create a fixed-term contract, or (c) supersede the at-will relationship. Include express at-will reaffirmation language (Section 10 below).

2. Retaliation Risk (Cal. Lab. Code § 1102.5 / § 1102.6). Effective January 1, 2022, SB 497 (§ 1102.6) establishes that once an employee makes a prima facie showing that protected activity was a contributing factor in the adverse action, the employer must prove by clear and convincing evidence that it would have taken the same action for legitimate, independent reasons. A PIP issued after protected activity (whistleblower report, harassment complaint, CFRA/FMLA leave request, workers' comp claim) creates significant retaliation exposure. Document legitimate performance issues independently and before any protected activity.

3. FEHA Disparate Treatment. Cal. Gov. Code § 12940 prohibits discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, veteran/military status, or reproductive health decisionmaking. A PIP should be grounded in documented, objective performance metrics and should be administered consistently with PIPs given to similarly situated employees outside the protected class.

4. Reasonable Accommodation Interactive Process. If poor performance may be related to a disability or a major life activity, the employer must engage in the "interactive process" under Cal. Gov. Code § 12940(n) before imposing discipline. Failure to do so is an independent statutory violation.

5. CFRA / PDL Leave Protection. Cal. Gov. Code § 12945.2 (CFRA) and § 12945 (Pregnancy Disability Leave) prohibit using leave as a negative factor in performance evaluation. Leave time cannot count against the employee during the PIP period. Extend PIP deadlines by the duration of any protected leave.

6. Cal. Lab. Code § 432.5 — No Illegal Terms. An employer may not require an employee to agree in writing to any term or condition known to be prohibited by law. Do not include non-compete language, class-action waivers outside the statutory Viking River / PAGA framework, or silencing provisions.

7. Cal. Lab. Code § 432 — Employee Right to Copy. If the employee signs the PIP, the employee is entitled upon request to a copy of the signed instrument.

8. Cal. Lab. Code § 1198.5 — Personnel File Access. The employee has a right to inspect and receive a copy of the PIP and related documents in the personnel file within 30 days of written request.

9. Common Interest Privilege (Cal. Civ. Code § 47(c)). Internal PIP communications among managers with a need to know are protected by the common-interest privilege against defamation, provided they are made without malice.

10. No Silencing of Unlawful Workplace Conduct. Under the Silenced No More Act (Cal. Gov. Code § 12964.5; Cal. Code Civ. Proc. § 1001) and Cal. Bus. & Prof. Code § 16600 as amended, the PIP cannot be used to silence harassment reports, prohibit cooperation with agencies, or impose post-employment restraints.

CONFIDENTIAL PERSONNEL DOCUMENT
PREPARED FOR INTERNAL USE — COMMON INTEREST PRIVILEGE

PERFORMANCE IMPROVEMENT PLAN

Part A — Identifying Information

Employee Name: [____________________]
Employee ID: [____________________]
Position / Classification: [____________________]
Department / Unit: [____________________]
Date of Hire: [__/__/____]
Employment Status: ☐ Exempt ☐ Non-Exempt (Cal. Lab. Code § 515; applicable Wage Order No. [____])
Direct Supervisor: [____________________]
HR Business Partner: [____________________]

PIP Start Date: [__/__/____]
PIP End Date: [__/__/____]
Review Cadence: ☐ Weekly ☐ Bi-weekly ☐ Other: [____]
PIP Duration: [30 / 60 / 90] calendar days (to be extended by any protected leave)

Part B — Identified Performance Deficiencies

This PIP is based on the following documented, objective performance deficiencies observed and recorded prior to the PIP Start Date. Each deficiency references specific, job-related performance standards previously communicated to Employee.

Deficiency 1

• Performance Standard: [Specific, pre-existing, job-related standard]
• Observed Conduct / Metric: [What was observed; data and dates]
• Impact on Business: [________________________________]
• Documentation: [Reference to prior written warnings, emails, evaluations, metrics reports — attached as Exhibit [____]]

Deficiency 2

• Performance Standard: [____________________]
• Observed Conduct / Metric: [____________________]
• Impact on Business: [____________________]
• Documentation: [____________________]

Deficiency 3

• Performance Standard: [____________________]
• Observed Conduct / Metric: [____________________]
• Impact on Business: [____________________]
• Documentation: [____________________]

Part C — Required Improvements and SMART Goals

Employee is required to achieve the following measurable improvements during the PIP Period. Goals are Specific, Measurable, Achievable, Relevant, and Time-bound (SMART).

Part D — Support and Resources

The Company will provide the following support to help Employee succeed:

☐ Weekly 1:1 check-ins with supervisor
☐ Assignment of mentor: [____________________]
☐ Job-related training: [____________________]
☐ Access to the Employee Assistance Program (EAP)
☐ Reasonable accommodation interactive process (if applicable, Cal. Gov. Code § 12940(n))
☐ Reduced ancillary workload to focus on core duties
☐ Written feedback within [____] days of each check-in
☐ Other: [________________________________]

Part E — Check-In Schedule and Documentation

Part F — Consequences

F.1 Successful Completion. If, at the end of the PIP Period, Employee has achieved the required improvements to a degree satisfactory to management, Employee will return to regular performance management. Successful completion is not a guarantee of continued employment or a waiver of the at-will relationship and does not preclude future performance action for the same or different deficiencies.

F.2 Unsatisfactory Progress / Failure. If Employee fails to achieve the required improvements, or if performance further deteriorates at any time during the PIP Period, the Company may take further action up to and including termination of employment without further notice or an additional cure period.

F.3 New or Unrelated Misconduct. Nothing in this PIP limits the Company's ability to address any new or unrelated performance or conduct issues that arise during the PIP Period, including through immediate discipline or termination.

Part G — Protected Leave Tolling

If Employee takes any protected leave during the PIP Period (including CFRA leave under Cal. Gov. Code § 12945.2; Pregnancy Disability Leave under § 12945; paid sick leave under Cal. Lab. Code § 246; Kin Care under § 233; workers' compensation leave; COVID-19 leave; or military leave), the PIP End Date shall be automatically extended by the duration of such leave. Leave will not be counted as a performance deficiency, nor considered as a factor in evaluating progress on the PIP.

Part H — Accommodation Notice

If Employee believes a disability, medical condition, pregnancy, or religious belief is affecting performance, Employee is encouraged to notify [HR CONTACT] so that the Company may engage in the interactive process under Cal. Gov. Code § 12940(n) and determine whether a reasonable accommodation is available. Requesting accommodation is a protected right, and no adverse action will be taken in retaliation for such a request.

Part I — Non-Retaliation Acknowledgment

The Company issues this PIP based solely on the documented performance deficiencies identified in Part B. This PIP is not retaliation for any protected activity. Employee's rights under Cal. Lab. Code § 1102.5, FEHA (Cal. Gov. Code § 12940), CFRA (§ 12945.2), the California Family Rights Act, workers' compensation statutes, and any other state or federal law are preserved. Employee retains the right to report, internally or externally, any suspected unlawful activity without retaliation.

Part J — No Waiver / Employee Rights Preserved

Employee's signature below is an acknowledgment of receipt only and does not constitute agreement with or admission of the stated deficiencies. Employee retains:

• the right to rebut the PIP in writing (any rebuttal shall be maintained in the personnel file, Cal. Lab. Code § 1198.5);
• the right to request and receive a copy of this signed document (Cal. Lab. Code § 432);
• the right to inspect and copy the personnel file within 30 days of written request (Cal. Lab. Code § 1198.5);
• the right to file a complaint with the California Labor Commissioner, the Civil Rights Department (successor to DFEH), the EEOC, or other appropriate agency;
• the right to consult with legal counsel; and
• the right to engage in concerted activity under federal labor law.

Nothing in this PIP shall be construed as a restraint on lawful post-employment activity under Cal. Bus. & Prof. Code § 16600, nor as a confidentiality obligation covering unlawful workplace conduct under Cal. Gov. Code § 12964.5.

Part K — At-Will Reaffirmation

Employment with the Company remains at will pursuant to Cal. Lab. Code § 2922. Either Employee or the Company may terminate the employment relationship at any time, for any lawful reason or no reason, with or without notice or cause. This PIP does not create a contract of employment for any particular period, and does not alter the at-will relationship. No oral statements or course of conduct can modify at-will status; only a written agreement signed by [AUTHORIZED OFFICER / CEO] and expressly stating that it modifies at-will status may do so.

Part L — Signatures

Employee Acknowledgment of Receipt

I acknowledge that I have received and read this Performance Improvement Plan on the date set forth below. My signature does not necessarily mean I agree with its contents; it confirms that I have received a copy and understand the expectations.

Employee Signature: [________________________________]
Printed Name: [____________________]
Date: [__/__/____]

☐ Employee requests a copy of this signed PIP (Cal. Lab. Code § 432). ☐ Copy provided on [__/__/____].

☐ Employee declined to sign. Witnessed by: [____________________] on [__/__/____].

Supervisor:
[________________________________]
Name: [____________________]
Title: [____________________]
Date: [__/__/____]

HR Business Partner:
[________________________________]
Name: [____________________]
Title: [____________________]
Date: [__/__/____]

Sources and References

• Cal. Lab. Code §§ 201–203, 226, 232, 232.5, 233, 246, 432, 432.5, 515, 1102.5, 1102.6, 1102.8, 1198.5, 2802, 2922, 2698 (PAGA)
• Cal. Gov. Code §§ 12940 (FEHA), 12945 (PDL), 12945.2 (CFRA), 12964.5 (Silenced No More)
• Cal. Civ. Code § 47(c) (common interest privilege)
• Cal. Bus. & Prof. Code § 16600
• Guz v. Bechtel National, Inc., 24 Cal. 4th 317 (2000) (at-will employment)
• Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028 (2005) (FEHA retaliation standard)
• Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022) (§ 1102.6 burden-shifting)
• California Civil Rights Department (CRD, formerly DFEH) guidance on reasonable accommodation
• IWC Wage Orders (applicable industry order)