How to write a Performance Improvement Plan in 2026 — without getting sued

A PIP is not legal quicksand, but it's close. Six out of ten PIP-based terminations that reach counsel are followed by a discrimination charge, and the PIP itself becomes the primary exhibit. Write it well and you've documented a legitimate, non-discriminatory reason for any outcome. Write it badly and you've built your plaintiff's case for them. Here's the 2026 playbook — post-Ames, post-Hittle, post-Bynum, with the NLRB quorum newly restored and Stericycle still in force — plus a free generator that produces a fully-scored PIP in sixty seconds.

1. The McDonnell Douglas framing — why a PIP is Exhibit A

Most employment-discrimination cases survive or die on circumstantial evidence, and most of that evidence is filtered through the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden-shifting framework. The employee establishes a prima facie case; the employer articulates a legitimate, non-discriminatory reason; the employee then has the burden of showing the reason is pretext. At summary judgment, which is where most of these cases live or die, pretext is everything.

A PIP is not itself an adverse employment action in most federal circuits. You can't sue because you were put on one. But when a termination follows a PIP — which is the point of most PIPs — the PIP becomes the central artifact of the legitimate, non-discriminatory reason. Everything in it is evidence. The specificity of the deficiencies is evidence. The measurability of the goals is evidence. The resources committed is evidence. The consistency of check-ins is evidence. The timing relative to any protected activity is evidence.

A well-drafted PIP is the single most effective pretext defense an employer can produce. A badly-drafted PIP is the single most effective pretext attack the plaintiff can produce. The difference is not subtle. Courts cite specific PIP characteristics — subjective metrics, moving goalposts, denied resources, predetermined outcomes — as grounds for finding pretext and sending the case to a jury.

The PIP is not the adverse action. The PIP is the defense — or the weapon — for whatever the adverse action turns out to be.

2. The 2026 legal landscape in one page

Four developments in the last eighteen months changed how PIPs work. If your template hasn't been updated since mid-2024, it's stale in at least three places.

Ames v. Ohio Department of Youth Services (June 5, 2025)

The Supreme Court struck down the Sixth Circuit's "background circumstances" rule that had required majority-group plaintiffs to meet a heightened prima facie standard. Now the same McDonnell Douglas framework applies regardless of which protected class the plaintiff belongs to. Reverse-discrimination claims against PIPs issued to majority-group employees are now on equal footing with discrimination claims generally. This matters for PIPs issued in predominantly-minority workplaces, PIPs that disproportionately affect majority-group employees, and any PIP documentation that could be read as favoring one group over another.

Hittle v. City of Stockton (March 10, 2025)

The Supreme Court denied certiorari in a religious-discrimination case, but Justice Thomas, joined by Justice Gorsuch, wrote a concurrence openly questioning whether McDonnell Douglas should continue to govern summary judgment. The concurrence called the framework "a judge-made evidentiary tool" without statutory basis. In January 2026, the Supreme Court declined another invitation to reconsider the framework when it denied certiorari in Mays v. Newly Weds Foods — so McDonnell Douglas remains the controlling federal standard. But the writing is on the wall; the Eleventh Circuit's "convincing mosaic" alternative, most recently confirmed in Ismael v. Roundtree (December 5, 2025), gives plaintiffs a broader evidentiary path and is quietly spreading. Prudent PIP drafting should assume the case will be evaluated under either framework.

NLRB quorum restored (January 7, 2026)

After nearly a year without a quorum, the NLRB regained the ability to decide cases when James Murphy and Scott Mayer were sworn in on January 7, 2026. They joined David Prouty for a 2-1 Republican majority. Murphy was designated Chairman on March 27. Crystal Carey was sworn in as General Counsel the same day. But the Board's longstanding tradition requires a three-member majority to overturn precedent, and both new Members have said they will follow it. The fifth seat remains vacant. Prouty's term expires August 27, 2026. So as of today, Stericycle, Inc., 372 NLRB No. 113 (August 2, 2023) — the standard that treats any workplace rule with a "reasonable tendency to chill" Section 7 rights as presumptively unlawful — is still good law. So is McLaren Macomb, 372 NLRB No. 58 (February 21, 2023), reaffirmed in Prime Communications, LP, 374 NLRB No. 88 (April 7, 2026). PIP confidentiality language must still be narrowly tailored, and Section 7 rights must be preserved.

The 2025 FMLA interference wave

Five federal-court decisions in 2025 redefined how FMLA interference interacts with performance discipline. Bynum v. Bandza (C.D. Ill. 2025): interference found even though the employee received his full 12 weeks. Puris v. TikTok, Inc. (S.D.N.Y. 2025): warning an employee that leave would affect her compensation stated a claim even though she never formally requested leave. Clark v. Geisinger Health System (M.D. Pa. 2025): a supervisor's negative comments about FMLA use, standing alone, survived summary judgment. Teryl James v. FedEx Freight, Inc., 2025 WL 3121784 (11th Cir. 2025): summary judgment reversed where the employer never informed the plaintiff of his FMLA rights after he gave notice of his wife's high-risk pregnancy. Bunnell v. William Beaumont Hospital (6th Cir. 2025): supervisory omission during leave-adjacent reassignment was an adverse action even without retaliatory animus. The through-line: FMLA interference is strict-liability, and 2025's courts have narrowed every employer defense. Attendance PIPs carry the most exposure and need the most careful drafting.

3. The four PIP variants and when each fits

One-size PIP templates are why PIPs fail. A performance PIP and an attendance PIP have materially different legal terrain, and a conduct PIP is a different animal from either. Getting the variant wrong — dropping an attendance employee into a performance template and then counting FMLA leave against the targets — is how interference claims are made. The four variants are not aesthetic; they're structural.

Performance variant

Quantitative or qualitative output deficiencies: missed KPIs, quality defects, deliverable-quality problems, blown deadlines. The centerpiece is the SMART goal. The central legal overlay is ADA interactive process and essential-functions analysis. Standard duration is 60 days, with 90 appropriate for roles that require a full measurement cycle. The scorecard weights objective, measurable goals most heavily here; subjective goals ("demonstrate strong leadership") are a near-automatic pretext flag. Resources committed ("training," "mentoring," "access to data") count double in performance PIPs because the absence of resources is the most-cited resource-denial pretext indicator.

Attendance variant

Tardiness, unscheduled absences, no-call/no-show patterns. The central legal overlay is leave-protection layering: FMLA, PWFA, ADA, state PFML, state paid-sick-leave, and city/local attendance-protection statutes. The attendance variant inserts a carve-out clause at the top of the goals section excluding every category of protected leave from every metric. Attendance PIPs must never count a protected absence; counting FMLA under a no-fault policy is interference per se under 29 C.F.R. §825.220(c) and DOL Fact Sheet #77B. Attendance PIPs also implicate caregiver-status protections in NYC, New Jersey, Hawaii, Illinois, Connecticut, and the District of Columbia — attendance patterns that correlate with childcare or elder-care obligations must be treated identically to attendance patterns from any other cause. The generator raises a critical-severity alert when attendance variant is selected in a caregiver-protected jurisdiction.

Conduct variant

Interpersonal issues, communication, professionalism, policy violations (non-criminal). The central legal overlay is NLRA Section 7 and the Lion Elastomers II protected-activity-misconduct carve-out (372 NLRB No. 83, May 1, 2023). Conduct PIPs most often run afoul of Section 7 because they define "unprofessional" behavior in ways that sweep in protected concerted activity — complaining about wages to coworkers, organizing attention to working conditions, raising safety concerns collectively. Conduct PIPs also carry regarded-as-disabled risk when the conduct at issue is mental-health-adjacent (volatility, withdrawal, social difficulty). The conduct variant keeps the language focused on specific, observable behavior — not personality, not "fit," not protected characteristics — and layers a tight Section 7 preservation clause.

Competency variant

Role-mismatch or skill-gap scenarios. The employee is not doing anything wrong; they simply lack a skill the role requires. Competency PIPs are development-oriented by default, paired with a training or coaching plan, and run longer (90+ days) because skill development is not a 30-day arc. The scorecard weights termination-path language least heavily here; competency PIPs that read like performance PIPs ("failure will result in termination") are a self-inflicted pretext risk because they suggest the employer was using a development framework as a termination pathway. The generator's competency variant replaces the usual "non-completion" clause with a "skill development plan continues" default and flags termination-oriented language.

4. ADA interactive process, without the magic words

The EEOC's Applying Performance and Conduct Standards to Employees with Disabilities guidance — most recently reaffirmed in 2024 — is the single most useful document in PIP drafting. Read it in full if you haven't. The guidance encodes six principles that every PIP must accommodate.

Principle one: performance standards don't have to be lowered. The ADA requires accommodations that enable the employee to meet existing standards. It does not require you to eliminate essential functions or reduce output quotas. The PIP can demand the same result it would demand of any other employee. What it must do is make that result achievable with accommodation.

Principle two: you can pause the PIP clock to process an accommodation request. If an employee mid-PIP discloses a disability and requests accommodation, the employer may temporarily pause the evaluation period while the interactive process runs. This is in your favor; it avoids the ADA's independent rule that unnecessary delay in providing effective accommodation may itself violate the Act. Pause the clock, document it, process the request, and then resume — with the accommodation in place.

Principle three: you don't have to rescind prior warnings. An accommodation request does not retroactively excuse prior performance failures. The EEOC guidance is explicit about this. Prior documentation stands; the accommodation operates going forward. This is the employer's single biggest protection against "I was about to request accommodation" pretext theories — as long as the prior documentation is contemporaneous, not reconstructed after the fact.

Principle four: don't focus the PIP on the disability. This is the subtle one. A supervisor who says "we've noticed your anxiety has been affecting the team" during a PIP conversation has just created a regarded-as-disabled claim and a distraction from the objective performance issue. Keep the PIP language focused on specific, observable performance facts. If the employee raises a medical or mental-health connection, the supervisor listens, routes the conversation to HR for the interactive process, and continues the PIP on the performance track in parallel.

Principle five: request documentation only when it's reasonable. The ADA lets you ask for medical documentation, but only when the documentation is reasonably necessary to determine whether the condition is a disability and what accommodation would address the limitation. You can't ask when the disability and need are obvious (a wheelchair user asking for a ramp). You can't ask when you already have sufficient information. You can't ask when the accommodation is otherwise available without documentation. Over-requesting is itself a PIP red flag — it signals the employer is looking for a reason to deny, not engaging the interactive process.

Principle six: keep medical info separate. Disability-related information obtained during the interactive process must be kept in a confidential medical file separate from the personnel file, per 42 U.S.C. §12112(d)(4)(C). The PIP itself goes in the personnel file. The accommodation documentation does not. Conflating them is an independent ADA violation and a gift to plaintiff's counsel.

A final point on ADA interactive-process triggering: the employee does not have to say the magic words "ADA" or "reasonable accommodation" to trigger it. The EEOC guidance says any plain-language description of a limitation and a work issue is sufficient. A supervisor hearing "my back has been killing me and I can't sit through meetings like this" is on notice. Ignoring that statement because the employee didn't use the right legal terms is a per se interactive-process failure.

5. FMLA and PWFA carve-outs — the 2025 cases that changed everything

The 2025 term was brutal for employer FMLA defenses. Five decisions narrowed or eliminated theories that had been working for employers for years.

Bynum v. Bandza (C.D. Ill. 2025). A jury found interference even though the employee received every one of his 12 weeks. The old defense — "we gave them the leave, so there's no interference" — is gone. Giving leave is the floor, not the ceiling. Mishandling the paperwork, discouraging the use, or penalizing the employee's performance based on pre-leave metrics are all independent interference theories.

Puris v. TikTok, Inc. (S.D.N.Y. 2025). The employer warned an employee that taking leave would affect her compensation. She never formally requested leave. The court held the warning alone stated a claim for interference — chilling the exercise of FMLA rights is interference even without a denied request. For PIP drafting: nothing in a PIP can suggest that leave usage will affect performance evaluation. This includes subtle language like "consistent attendance is essential to meeting these goals."

Clark v. Geisinger Health System (M.D. Pa. 2025). The supervisor made negative comments about an employee's FMLA use in informal conversation. The plaintiff sued for retaliation; the employer moved for summary judgment. The court denied the motion — the comments alone were sufficient to let the case reach a jury. For PIP drafting: supervisor training is now critical, because a supervisor's off-hand comment about FMLA can destroy the employer's defense even if the PIP itself is impeccable.

Teryl James v. FedEx Freight, Inc., 2025 WL 3121784 (11th Cir. 2025). Plaintiff gave notice that his wife was experiencing a high-risk pregnancy and he might need leave. FedEx never informed him of his FMLA rights — instead, disciplined him for leaving at his scheduled end time and later fired him. The Eleventh Circuit reversed summary judgment for FedEx. The key holding: notice triggers the employer's obligations, even without formal leave request forms and even without the employee using the words "FMLA." If a supervisor hears "my spouse is in the hospital and I need to leave," the employer's notice obligations kick in. For PIP drafting: attendance-variant PIPs must include an explicit process by which the employee can report a protected-leave need without being penalized for the report itself.

Lohmeier v. Gottlieb Memorial Hospital (7th Cir. 2025). The counter-case. The employer discovered drug theft; the employee was suspended pending investigation; she then submitted FMLA paperwork; the employer completed the investigation and terminated her. The Seventh Circuit affirmed summary judgment for the employer because the discipline process was in motion before the FMLA request. For PIP drafting: contemporaneous documentation of the discipline timeline is everything. If the PIP decision was made before protected activity, you need written evidence of that — meeting notes, email chains, HR consultations — dated before the protected activity. A reconstruction is worthless. The generator's "pre-issuance review" field is designed to capture this timeline contemporaneously.

The PWFA layer

The Pregnant Workers Fairness Act (42 U.S.C. §§2000gg–2000gg-6) adds a second leave-protection layer on top of FMLA for pregnancy-related limitations. The EEOC's final rule (89 Fed. Reg. 29096, effective June 18, 2024) defines covered conditions broadly: pregnancy, childbirth, miscarriage, stillbirth, lactation, morning sickness, gestational diabetes, preeclampsia, postpartum depression, and more. The accommodation toolset is broader than ADA — most notably, the PWFA explicitly allows temporary suspension of essential functions per 29 C.F.R. §1636.3(f)(1)(vii), something the ADA does not. A PIP issued to an employee with a known pregnancy-related limitation must engage the PWFA interactive process, which runs parallel to the ADA process and has its own obligations.

One regional nuance: on May 21, 2025, the Western District of Louisiana vacated the abortion-accommodation portion of the PWFA final rule as applied in Louisiana and Mississippi. The vacatur is narrow — it applies only to abortion as a covered condition in those two states — and does not affect any other PWFA limitation. Every other protection continues to apply nationwide.

For the attendance variant, the generator inserts FMLA and PWFA carve-out language by default and extends the PIP duration by the number of days spent on protected leave so the employee has a full evaluation period in active-duty status. The scorecard flags attendance variant in caregiver-protected jurisdictions (NYC, NJ, HI, IL, CT, DC) as a high-severity comparator-analysis check.

6. Stericycle-compliant confidentiality

Most PIP templates include a paragraph that says something like "this document is confidential and may not be discussed with anyone other than HR." Those paragraphs are, in the current legal environment, presumptively unlawful.

Stericycle, Inc., 372 NLRB No. 113 (August 2, 2023), held that an employer rule is presumptively unlawful if it has a "reasonable tendency to chill" Section 7 rights — interpreted from the perspective of an employee who is economically dependent on the employer and who contemplates engaging in protected concerted activity. The employer can rebut the presumption by proving the rule advances a legitimate and substantial business interest that cannot be achieved by a more narrowly tailored rule. A blanket "don't discuss your PIP" rule chills discussion of terms and conditions of employment with coworkers — which is the core of Section 7 protected concerted activity — and cannot survive the tailoring requirement.

Stericycle is still controlling law as of April 2026. The NLRB regained quorum on January 7, 2026 and is now 2-1 Republican, but the Board's three-vote tradition for overturning precedent, which both new Members have indicated they will follow, preserves Stericycle until a fifth Member is confirmed. Prime Communications, LP, 374 NLRB No. 88 (April 7, 2026), is the Board's most recent application of McLaren Macomb to confidentiality and non-disparagement language — it was issued by the newly-constituted Board and it applied the same Biden-era standard.

What survives Stericycle is narrowly-tailored confidentiality for specific legitimate interests:

• Disability-related medical information disclosed during the interactive accommodation process, per 42 U.S.C. §12112(d)(4)(C). Keeping that information confidential is a federal statutory requirement.
• Open-investigation details, limited to the duration of the investigation. This is the narrow Apogee-style confidentiality that survives Stericycle as long as it has a fixed end point.
• Attorney-client privileged analysis related to the PIP. Privileged is privileged.

Everything else — the fact of the PIP, its contents, the employee's disagreement with it, the supervisor's handling of it, the outcome — is discussable with coworkers, labor organizations, counsel, and government agencies. The PIP must say so explicitly. The Section 7 preservation clause is not optional; it's the tailoring required to rebut the Stericycle presumption.

Note that supervisors are generally not covered by NLRA Section 7 because they're excluded from the definition of "employee" in 29 U.S.C. §152(3). Stericycle applies to supervisory PIPs only in narrow retaliation-adjacent contexts. But because the line between "supervisor" and "lead" or "senior" is often ambiguous, the safest default is to use Stericycle-compliant language for all PIPs.

7. State supplements: Montana, California, NY/NYC, Washington

Montana — the only non-at-will state

Montana is unique. Under the Wrongful Discharge from Employment Act (Mont. Code §§39-2-901 through 39-2-915), an employee who has completed the probationary period may not be terminated except for good cause. Mont. Code §39-2-903(5) defines good cause as "reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, a substantial or repeated violation of an express provision of the employer's written policies, or other legitimate business reasons determined by the employer while exercising its reasonable business judgment."

A Montana PIP does triple duty. First, it's the documentation spine for the good-cause requirement — a terminated Montana employee will argue there was no good cause, and the PIP is the employer's primary evidence that there was. Second, it's itself a written policy that the employer must follow materially, because §39-2-904(1)(c) creates an independent wrongful-discharge claim when an employer materially violates its own written personnel policy in a way that deprives the employee of a fair and reasonable opportunity to remain employed. If your PIP says you'll have weekly check-ins and you don't, that's an independent §39-2-904(1)(c) claim separate from the good-cause inquiry. Third, §39-2-911 requires the employer to notify a discharged employee of the internal grievance procedure within seven days of discharge, and the employee must exhaust that procedure before filing a WDEA claim.

Probation. The default probationary period is 12 months under §39-2-904(2); the employer may extend once by up to six months, for a maximum of 18. During probation, employment is at-will. Post-probation, the WDEA framework attaches. Montana employers should clearly document probationary status and any extension at the start of the PIP.

Damages are capped at 4 years of lost wages and fringe benefits (§39-2-905), with unemployment benefits and post-discharge earnings deducted per the 2021 amendments — a significant departure from the collateral-source rule in other jurisdictions and one that cuts into plaintiff recoveries meaningfully.

California — SB 513, AB 692, and Skelly

Three California-specific provisions bear on PIP drafting. SB 513 (effective 2026) amends Labor Code §1198.5 to expand personnel-file scope to include training records — name of provider, date, duration, core competencies covered, completion status. Any training referenced in the PIP is now personnel-file material that the employee may request within 30 calendar days. AB 692 (effective January 1, 2026) voids most stay-or-pay and benefit-repayment clauses in employment agreements. PIPs that implicitly conditions training investment on continued employment with repayment on departure are a compliance risk under AB 692. Skelly v. State Personnel Board, 15 Cal.3d 194 (1975) requires public-sector employees with a property interest in continued employment to receive written notice of proposed discipline, copies of documents relied upon, and an opportunity to respond orally or in writing before discipline is imposed. For California public-sector PIPs, the Skelly procedural protections are constitutional due-process requirements — not best practices.

FEHA (Gov. Code §12900 et seq.) applies to California employers with 5+ employees and has broader pregnancy and disability accommodation duties than federal law. California Family Rights Act (Gov. Code §12945.2) parallels FMLA with a longer duration (12 weeks that don't run concurrently with baby-bonding leave in many cases) and broader family definitions. Attendance-variant PIPs in California must carve out CFRA on top of FMLA.

New York / NYC — somewhat-better treatment and caregiver status

New York State Human Rights Law (Exec. Law §296) applies to employers with 4+ employees and uses a "somewhat better treatment" comparative standard under Golston-Green v. City of New York, 184 A.D.3d 24 (2d Dep't 2020) — a lower bar than federal "severe or pervasive." NYSHRL comparator analysis is significantly more plaintiff-friendly than federal; a PIP that is even somewhat more burdensome than comparable treatment of a comparator can support a discrimination claim.

NYC Administrative Code §8-107 (NYCHRL) applies to employers with 4+ employees within New York City and adds a substantial list of protected categories beyond federal — including caregiver status (§8-102, amended May 4, 2016). A caregiver is a person who provides direct and ongoing care for a minor child or a care recipient (a covered relative with a disability or a household member with a disability). For attendance-variant PIPs in NYC, caregiver status is a primary comparator consideration — attendance patterns correlated with childcare or elder-care obligations must be treated identically to attendance patterns with any other cause. A parent whose attendance issue relates to school pickup times cannot be treated more harshly than an employee whose attendance issue relates to anything else.

Washington — HB 1875 personnel file + PFMLA expansion

Washington amended its Personnel File Act via HB 1875, effective July 27, 2025. The amendment creates a private right of action for employees to obtain their personnel files, with statutory damages on a sliding scale: zero for production within 21 days, $250 for production within 21-35 days, up to $1,000 for production beyond 35 days, $500 for other violations, plus attorney fees. Pre-suit notice requirement: 5 calendar days written notice of intent to sue, including the initial personnel-file request. For Washington employers, a PIP is now personnel-file material that the employee can request through statutory teeth — the file must be producible on request without redaction games.

Washington also expanded Paid Family and Medical Leave (RCW §50A) job-restoration rights: effective January 1, 2026 for employers with 25+ employees, January 1, 2027 for 15+, and January 1, 2028 for 8+. The 1,250-hour requirement is removed and replaced with a 180-calendar-day tenure requirement. Attendance-variant PIPs in Washington must carve out PFMLA leave from every metric, and the employer must track the 180-day tenure threshold to know which employees are PFMLA-protected.

Other states at a glance

8. Ten pretext red flags

Courts applying the McDonnell Douglas pretext inquiry or the Eleventh Circuit's convincing-mosaic standard repeatedly cite the same PIP characteristics as grounds for sending cases to juries. Write through each of these before delivery.

1. Timing after protected activity. The PIP issues shortly after the employee requests an accommodation, files an internal complaint, discloses a pregnancy, takes FMLA leave, reports a wage or safety violation, or reaches an age, pregnancy, disability, or other protected status. The tighter the temporal proximity, the heavier the inference. Contemporaneous documentation that the PIP decision predates the protected activity (per Lohmeier) is the primary defense.
2. Subjective metrics. Goals phrased as "improve communication skills," "demonstrate stronger leadership presence," or "be a better team player" allow the manager to declare failure regardless of what the employee does. Every goal must have a specific metric, target, and deadline. If it doesn't, it's not a goal; it's a setup.
3. Moving goalposts. Metrics change during the PIP, new standards are introduced partway through, or the target is raised in response to initial progress. This is the single most-cited pretext indicator after subjective metrics. Lock goals at issuance and resist the urge to refine them mid-cycle.
4. Resource denial. The PIP demands improvement but withholds the training, tools, mentoring, or management support necessary to achieve it. Resources don't have to be expensive, but they have to be something. "Weekly 1:1 coaching with supervisor" is a resource. "Access to senior engineer mentor" is a resource. Zero resources is a pretext red flag.
5. Comparator inconsistency. Other employees with similar or worse performance in the same role under the same supervisor have not been placed on PIPs. Run a comparator analysis before delivery — do not wait for plaintiff's counsel to do it for you. If there are comparators, either PIP them too or document why the situations are materially different.
6. Prior-review inconsistency. The employee has consistently positive reviews up to the PIP, with no documented prior warnings or counseling. Sudden PIPs that contradict years of positive reviews are the most obvious pretext pattern. If the issue is genuinely new, document the trigger — a project failure, a customer complaint, a quantifiable shift — contemporaneously.
7. Predetermined-outcome signals. Supervisor comments suggesting the outcome is decided, decisions made before the PIP period ends, preparation of termination paperwork during the PIP. A supervisor who says "we just need to get through this" during a check-in has given plaintiff's counsel a deposition quote.
8. Written-policy deviation. The employer has a written progressive-discipline policy that the PIP skips or varies from without documented justification. This is especially dangerous in Montana (independent §39-2-904(1)(c) claim) and in New Jersey civil service and teaching staff (West New York v. Bock).
9. Focus on the protected characteristic. The PIP discussion emphasizes the disability, pregnancy, age, or other protected characteristic rather than the specific performance issue. This is how regarded-as-disabled claims are made. Keep the language focused on specific, observable performance facts.
10. Check-in non-compliance. The PIP promises weekly check-ins but they do not occur, are rescheduled repeatedly, or do not document the employee's progress. A check-in record with three missed sessions and no written output undermines every other claim the employer makes about fair process.

9. The 22-check compliance scorecard

The PIP generator runs every document against 22 compliance checks on delivery. Twenty-one apply to every variant; the twenty-second (no-fault attendance carve-out) applies only to the attendance variant. The full list:

1. Variant and jurisdiction fit — matches the document to the scoring rule set
2. Parties identified — Employee and Company placeholders filled
3. Supervisor and HR contact named — interactive-process and retaliation channels clear
4. Specific deficiencies documented — critical fail if absent
5. SMART goals defined — critical fail if absent, warn if subjective
6. Resources and support committed — high-severity warn if absent
7. Check-in cadence — warn on monthly, pass on weekly/bi-weekly
8. PIP duration — fail under 30, warn over 120, pass 30-120
9. Outcome clarity — success and failure outcomes both stated
10. ADA interactive-process trigger — universal, always passes with default language
11. Active accommodation request — info-tracks the interactive process if engaged
12. PWFA known-limitation acknowledgment — default on; flags if disclosed
13. FMLA leave-adjusted standards — conditional on attendance variant or active leave
14. No-fault attendance carve-out — attendance variant only
15. Essential functions identified — warn on performance/competency if absent
16. Protected-activity temporal proximity — critical warn if recent activity disclosed
17. Prior-review consistency — warn if prior record not summarized
18. Stericycle-compliant confidentiality — critical fail if conf on + §7 off
19. McLaren Macomb / Prime Communications posture — warn if non-disparagement included
20. Montana WDEA compliance — state-specific, exercises §39-2-911 grievance logic
21. State personnel-file disclosure — flags CA SB 513, WA HB 1875, CT §31-128a, IL PRRA
22. Caregiver-status protection — high warn on attendance variant in caregiver-protected states

The scorecard is visible in real time as the PIP is drafted. Fail and warn checks are weighted by severity: low (informational), medium (best practice), high (defensibility risk), and critical (documented violation risk). A PIP with any critical-severity fail should not be delivered until remediated.

10. The free generator

The Ultimate Design Tools Performance Improvement Plan Generator produces a fully-drafted, jurisdiction-specific, variant-specific PIP from structured inputs and scores it against all 22 compliance checks. Four variants (performance, attendance, conduct, competency). Fifty states plus DC. Six export formats: Word .doc, HTML, Markdown, plain text, Print/PDF, JSON configuration. All processing runs in the browser — no uploads, no accounts, no signup. The generator never asks for real employee names; the template uses [Employee] and [Company] placeholders throughout so you can draft safely and fill in the real data only when you import the Word file into your own document management system.

The generator is part of the Legal Tools suite, which also includes the Workplace Investigation Report Generator (often a precursor to a conduct PIP), the Severance Agreement Generator (often the endpoint of a non-completed PIP), the Employment Agreement Generator (sets the at-will baseline a PIP operates against), and the NDA Generator (whose Stericycle-compliant carve-outs mirror the PIP's confidentiality framework). The full legal stack is designed to track each other across the lifecycle — a document produced in one tool will reference terms and carve-outs consistent with the others.

This article is informational and does not constitute legal advice. Case law, statutes, and NLRB doctrine cited are current to April 17, 2026. Before issuing a PIP that may lead to termination, consult a licensed employment attorney in the applicable jurisdiction. The Ultimate Design Tools Performance Improvement Plan Generator is a drafting assistant, not a substitute for counsel.

About the author. Derek Giordano builds Ultimate Design Tools, a free browser-based suite of 203 design, development, and legal tools. Follow the blog for more deep-dives on employment-law drafting for the 2026 landscape.