[co-author: Savannah M. Wormley]
In a win for employers, the First Circuit in Walsh v. HNTB Corporation has offered welcome clarity on the reach of the Supreme Court’s “some harm” standard as it relates to performance improvement plans. We discuss the decision below and look forward to exploring it further – along with other important employment law issues – at our upcoming 2026 Mintz Employment Law Summit.
The Supreme Court States That Employees Need Only Show “Some Harm” to Demonstrate an Adverse Employment Action.
As a refresher, in Muldrow (which we discussed here), the Supreme Court rejected the long-applied requirement that employees show a “materially significant disadvantage” or “significant detrimental effect” to demonstrate an adverse employment action. Instead, the Court held that an employee need only show “some harm respecting an identifiable term or condition of employment.” As the Court explained, to “discriminate against” an employee simply “means treat worse” – with no heightened threshold of harm required. Since Muldrow, courts across the country have been applying this lower standard to everyday workplace actions.
The First Circuit Holds That There is No Bright Line Rule That Delivering a Performance Improvement Plan to an Employee Results in Some Harm.
In Walsh, the First Circuit (which covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) addressed how the “some harm” standard applies to PIPs. The Court drew a careful distinction...
By Victor Ahiuma-Young The National Pension Commission (PenCom) has introduced stricter advertising rules for Pension Fund Administrators, PFAs, warning operators against false claims, misleading ...