Donald Schroeder Highlights Employer Takeaways in Wake of Recent Bias Ruling

Foley & Lardner LLP partner Donald Schroeder shared insights on the key takeaways for employers related to performance improvement plans (PIPs) in the Law360 article, “4 Takeaways As 1st Circ. Offers Post-Muldrow PIP Road Map.”

Schroeder said the ruling “is instructive within the First Circuit because obviously it’s calling out what may or may not constitute an adverse employment action post-Muldrow. It’s really saying a good amount about what the signs should be as to whether or not PIPs will fall within the adverse employment action category.”

Addressing the court’s warning about restricting employee opportunities, he noted, “I think this is something that a lot of employers do not do that I think they should do; keep the pay and promotion decisions on separate tracks from the PIP.” He added that if a PIP does impact pay or promotion, it will likely fall within the scope of Muldrow and increase employer exposure to claims.

“I think if you try to make the PIP apply to every single situation so that it impacts a wide range of terms and conditions of employment as opposed to being a performance counseling tool, I think you’ve lost the argument,” Schroeder added.

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