Performance Improvement Plan (New York)

PERFORMANCE IMPROVEMENT PLAN — STATE OF NEW YORK

New York-specific PIP drafted to minimize exposure under the NYSHRL (as amended 2019 to eliminate the "severe or pervasive" standard), the NYCHRL (even broader than NYSHRL for NYC employers), NY Labor Law § 740 (expanded 2022), and related statutes. Confirms New York's at-will employment doctrine while building a record that insulates the employer from retaliation and discrimination claims.

CRITICAL NEW YORK PRE-ISSUANCE NOTES

☐ NYSHRL — Lower Standard. Effective October 11, 2019, the New York State Human Rights Law was amended (L. 2019, ch. 160) to remove the "severe or pervasive" standard for harassment claims and to require that discriminatory conduct be worse than "petty slights or trivial inconveniences" — a standard materially more plaintiff-friendly than Title VII.

☐ NYCHRL — Broader Still. For employees working in New York City, the NYC Human Rights Law (Admin. Code § 8-107) is construed "independently" and "broadly in favor of discrimination plaintiffs." Williams v. N.Y.C. Housing Auth., 61 A.D.3d 62 (1st Dep't 2009).

☐ Expanded Statute of Limitations. As of February 15, 2024, the NYSHRL limitations period for filing administrative complaints with DHR is three (3) years (L. 2023, ch. 506).

☐ Whistleblower — Labor Law § 740. Since January 26, 2022, Section 740 protects independent contractors, former employees, and conduct the employee "reasonably believes" violates law, rule, or regulation, or poses substantial and specific danger. PIPs issued near protected activity create strong retaliation inferences.

☐ Sexual Harassment Training. Labor Law § 201-g mandates annual training for all employees using New York State's model (or employer-equivalent) program.

☐ Wage Notices. Labor Law § 195(3) requires wage statements with each payment; if the PIP modifies compensation, a new § 195(2) notice and written acknowledgment may be required.

☐ Reasonable Accommodation. Before issuing a PIP, HR must screen for reasonable accommodation requests under the ADA, NYSHRL § 296(3), NYCHRL § 8-107(3), and pregnancy accommodation under Labor Law § 203-e.

☐ NYPFL and NYSSL. Verify the employee is not currently on, or imminently entitled to, New York Paid Family Leave (NY Workers' Comp. Law § 200 et seq.) or New York State Paid Sick Leave (Labor Law § 196-b).

☐ Post-Employment NDAs. If termination is anticipated and the dispute may involve discrimination/harassment/retaliation, any severance NDA must comply with Gen. Oblig. Law § 5-336 (no liquidated damages for breach, preference requirement, 21/7 day periods).

1. PLAN HEADER

PERFORMANCE IMPROVEMENT PLAN — CONFIDENTIAL PERSONNEL DOCUMENT

At-Will Statement: Employment in New York is presumptively at-will. Nothing in this Performance Improvement Plan ("PIP") creates an express or implied contract of employment for any definite term, alters the at-will nature of employment, or guarantees continued employment. Either the Employee or Company may terminate employment at any time, with or without cause or advance notice, subject to applicable federal, state, and local law.

2. REASON FOR PLAN

2.1 Nature of Performance Concerns. The following specific, documented performance concerns have given rise to this PIP:

2.2 Non-Discriminatory Purpose. This PIP is issued solely based on documented performance deficiencies and is not motivated by, and shall not be affected by, the Employee's membership in any class protected under the New York State Human Rights Law (Exec. Law § 296), the New York City Human Rights Law (NYC Admin. Code § 8-107), Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, or any other applicable federal, state, or local anti-discrimination law.

2.3 No Retaliation. This PIP is not retaliation for any protected activity, including but not limited to: filing or participating in a discrimination or harassment complaint; engaging in whistleblower activity protected by N.Y. Labor Law §§ 740 or 741; requesting reasonable accommodation; taking leave protected by FMLA, NYPFL, NYSSL, or other applicable laws; or engaging in collective action under Section 7 of the NLRA.

3. IMPROVEMENT GOALS AND METRICS

3.1 Specific, Measurable, Achievable, Relevant, Time-Bound (SMART) Goals:

3.2 Essential Job Functions. The Employee must meet all essential job functions set forth in the job description attached as Exhibit A, including:

• [________________________________]
• [________________________________]
• [________________________________]

3.3 Company Standards. Employee must comply at all times with the [Employee Handbook], [Code of Conduct], and all Company policies, including anti-harassment, anti-discrimination, and ethics policies.

4. COMPANY SUPPORT AND RESOURCES

4.1 Company commits to providing the following support during the Improvement Period:

☐ Weekly one-on-one check-ins with supervisor on [day/time]
☐ Dedicated coaching from [________________________________]
☐ Training in [________________________________]
☐ Access to [software, tools, reference materials]
☐ Mentoring by [________________________________]
☐ Reassignment of [____________ duties] during the Improvement Period
☐ Other: [________________________________]

4.2 Company will provide written feedback after each weekly check-in, summarizing progress and any new concerns.

5. REASONABLE ACCOMMODATION

5.1 If the Employee believes performance is affected by a disability, medical condition, pregnancy, religious practice, or status as a victim of domestic violence, the Employee is encouraged to contact [HR Contact Name] at [________________________________] to discuss reasonable accommodation under the ADA, NYSHRL § 296(3), NYCHRL § 8-107(3), Labor Law § 203-e (pregnancy), and Labor Law § 196-b (victims of domestic violence).

5.2 Company will engage in good-faith, individualized interactive dialogue regarding any accommodation request. A request for accommodation will not be treated as an admission of inability to perform or as a basis for adverse action.

6. PROTECTED ACTIVITY AND WHISTLEBLOWER NOTICE

6.1 Nothing in this PIP prohibits the Employee from:
a. Filing or participating in a charge or complaint with the EEOC, NYSDHR, NYCCHR, NLRB, OSHA, SEC, or other federal, state, or local agency;
b. Engaging in protected activity under N.Y. Labor Law § 740 (whistleblower) or § 741 (healthcare whistleblower);
c. Disclosing wage or compensation information under Labor Law § 203-e;
d. Participating in concerted activity protected by Section 7 of the NLRA;
e. Cooperating with governmental investigations;
f. Requesting reasonable accommodation; or
g. Testifying or participating in legal proceedings.

6.2 Company reaffirms its prohibition on retaliation for any of the foregoing activities.

7. PROGRESS REVIEWS

7.1 Review Schedule:

7.2 Each review shall be documented in writing. Employee will receive a copy and have an opportunity to provide written comments within three (3) business days.

8. CONSEQUENCES OF NON-IMPROVEMENT

8.1 If Employee fails to meet the Improvement Goals by the Final Review Date, Company may take further action, including but not limited to:

☐ Extension of the Improvement Period (documented in writing);
☐ Demotion or reassignment;
☐ Final Written Warning;
☐ Reduction in compensation (subject to new Labor Law § 195(2) notice);
☐ Termination of employment.

8.2 Any termination decision will be made in consultation with HR and, where appropriate, Legal. Termination for cause may affect eligibility for [severance / unemployment / equity vesting] as set forth in governing plan documents.

8.3 Unemployment Insurance. Employee is advised that termination of employment may impact eligibility for unemployment insurance benefits under N.Y. Labor Law § 593. Misconduct-based terminations may result in disqualification.

9. CONFIDENTIALITY AND RECORD RETENTION

9.1 Confidentiality. This PIP is a confidential personnel document. Company requests that Employee maintain the confidentiality of this document, subject to Employee's right to consult with an attorney, family member, union representative, or government agency.

9.2 Personnel File. A signed copy will be placed in the Employee's personnel file and retained in accordance with Company's record retention policy (minimum six (6) years to align with CPLR § 213 limitations period, longer for tax and benefit records).

9.3 Employee Right to Inspect. Employee has the right to review personnel records under Company policy; New York law does not generally mandate employer disclosure of personnel files in the private sector, but Company policy permits review upon written request.

10. ACKNOWLEDGMENT AND DISPUTE PROCESS

10.1 Employee Acknowledgment. By signing below, Employee acknowledges:
a. Receipt of this PIP;
b. Opportunity to ask questions and respond;
c. Understanding that signature does not constitute agreement with the substance of the concerns, only acknowledgment of receipt;
d. Understanding of the at-will nature of employment; and
e. Awareness of Company's anti-retaliation and reasonable accommodation policies.

10.2 Employee Response. Employee may submit a written response to this PIP within seven (7) calendar days, which shall be retained with this document in the personnel file.

10.3 Internal Grievance. Employee may raise concerns through Company's internal grievance procedure, including contacting [HR Contact / Ethics Hotline / Ombuds].

11. GOVERNING LAW

11.1 This PIP and the Employee's employment are governed by the laws of the State of New York, subject to federal law. Where Employee works in New York City, NYCHRL provides additional protections that are liberally construed in favor of the Employee.

11.2 Nothing in this PIP constitutes a waiver of any statutory right or forum, including the right to file with the EEOC, NYSDHR, or NYCCHR.

12. SIGNATURES

ISSUED BY:

___________________________________
[________________________________], Supervisor
Title: [________________________________]
Date: [__/__/____]

___________________________________
[________________________________], HR Business Partner
Date: [__/__/____]

EMPLOYEE ACKNOWLEDGMENT:

I acknowledge receipt of this Performance Improvement Plan and the opportunity to discuss it with my supervisor and HR. My signature indicates receipt only, not agreement.

___________________________________
[________________________________] (Employee)
Date: [__/__/____]

☐ Employee declined to sign; witnessed by [________________________________] on [__/__/____].

EXHIBIT A — JOB DESCRIPTION

[Attach current written job description with essential functions]

EXHIBIT B — EMPLOYEE RESPONSE (if any)

[Reserved for Employee's written response, to be retained with this PIP in the personnel file]

Sources and References

• N.Y. Exec. Law § 296 — https://www.nysenate.gov/legislation/laws/EXC/296
• N.Y.C. Admin. Code § 8-107 (NYCHRL)
• N.Y. Labor Law § 740 (2022 Whistleblower Amendments)
• N.Y. Labor Law §§ 195, 196-b, 201-g
• L. 2019, ch. 160 (NYSHRL Harassment Standard)
• L. 2023, ch. 506 (3-year NYSHRL SOL)
• Williams v. N.Y.C. Housing Auth., 61 A.D.3d 62 (1st Dep't 2009)
• N.Y. Gen. Oblig. Law § 5-336

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. It must be reviewed and customized by a New York-licensed attorney before use.