Unfortunately, this is probably not in the employment contract, at least if it's in the US. Morally I agree with you; legally I think the major outcome is likely to be a wave of employees running for the doors. Unless, as you say, some real negotiation occurs with recognition that if more is being asked, more should be given.

@keshlam I'm not sure which part you're not agreeing with, I mention an exodus of employees as one of the possible outcomes.

I'm disagreeing with "downright illegal". At least in the US, it probably ain't.

@keshlam: Using a PIP to oust an employee either (a) openly by stating it's because they don't do work that was never theirs to do in the first place, or (b) making false claims just in order to get the PIP to go through; would be significantly illegal - otherwise an employee wouldn't be able to be afforded any kind of protection on any topic. Note the distinction between "it's illegal" and "you will definitely be found guilty in court without any doubt whatsoever" - I'm arguing the former, not the latter.

Abusing PIP is immoral and fattening (and blatently stupid), but generally not illegal in the US. Remember, most of us can be fired summarily without any justification whatsoever.

The situation the author describes wouldn’t and couldn’t be solved by a PIP, because the employee would never be able to successfully complete the PIP, because the employee won’t work with reasonable compensation for being on-call and it’s clear that’s NOT on the table. Besides PIP isn’t required unless it’s required by state employment laws for cause decisions, but the employee, wouldn’t have a problem fighting such an insane firing “for cause” in my opinion. No reasonable person would find, uncompensated on-call work, to be reasonable. Expecting uncompensated work is unreasonable.

@keshlam: You are sidestepping a whole lot of nuance in favor of "what does it matter anyway". You're entitled to your opinion but I question whether it constructively contributes here. The existence of some cases of PIPs being using for ulterior motives does not mean that all PIP abuse should therefore be tolerated. For OP's employee's scenario, no reasonable PIP can be drafted that would give OP what they want without massive ethical and likely legal violations. This remains to be important to point out, regardless about how you personally feel about at-will employment.

We agree that we disagree, @flater. And as I said, mostly about precise wording of one phrase.

@keshlam: It seems to me that when you say "Abusing PIP is [..] generally not illegal in the US", you are using illegal to mean "difficult to prove in court, not guaranteed to rule in your favor". That's not what the word "illegal" means. Since you are contesting the phrase in which I call it illegal, we definitely need to make sure that we're both using the same definition for that word, and it doesn't appear to me that you're using a correct definition there. It's relevant to point out that PIP abuse can be hard to prove in court, but that's not the same as saying that it's not illegal.

If you've got a specific citation for what law(s) it violates, I'd appreciate learning it. Otherwise, agreeing that we disagree is where we stop.

@keshlam: A PIP by itself does not provide any protection from several existing laws pertaining to worker protection, whether it be discrimination, harassment, or just a general breach of contract (e.g. when trying to circumvent severance payment or fixed term contracts). The illegality is not because it's put on a PIP, the illegality stems from the behavior for which the PIP was used as a tool. The PIP merely acts as hard evidence to help make that case. Furthermore, if fabricated claims/evidence are being used for the PIP, defamation, libel and fraud are additional considerations.

We agree that the legal issue, if any, isn't the PIP, it's specific abuses thereof. I don't see either the PIP, or those specific issues, as relevant to the case at hand. But comments are NOT the place for a deep dive. I've said my piece.

@keshlam: "We agree that the legal issue, if any, isn't the PIP, it's specific abuses thereof." Any and all reasons in the context of this answer would be such abuses, which you just agreed are illegal. Therefore it is correct to then call the usage of a PIP in the context of this question illegal. Never did I claim that the overall use of PIPs in general was illegal. In terms of it being "relevant to the case at hand", pointing out the consequences of engaging in illegal actions is relevant advice for someone who's asking for advice and suggesting they might do something illegal.

Let us continue this discussion in chat.

"The CTO's whims do not supersede the contract between your employee and the company. " - I wouldn't assume there is a contract. It would be nice to know if this is the US or elsewhere.

@JoeStrazzere: This is not the first time you've commented this on an answer of mine, so I'll skip to the end of that past discussion: if there is no contract, the entire concept of enforceable agreements between two parties ceases to exist and therefore no question can be meaningfully answered. Is that a possibility? Sure. Does that meaningfully contribute to questions that don't indicate that the people involved in the question are working without any concept of a legal contract? No. If anything, OP's question implies that they can't just unilaterally enforce this, so a contract is assumed.

@JoeStrazzere: IANAL, but if OP works for the company and receives compensation, a contract exists. It might not be a written contract, but that doesn't mean you're free to break an oral contract or a contract that exists "by conduct" (although proving the terms of the contract might be harder in that case). I agree that a country tag would be useful.

@Heinzi - I'm guessing you aren't in the US.

@JoeStrazzere: That's correct. But, as far as I know (feel free to correct me if I'm wrong), oral and implied contracts also exist in common law jurisdictions.

@BartvanIngenSchenau - clearly, things are different in the US than elsewhere. In the US outside of a union, you don't have an "employment contract" that prevents the employer from asking you to be on call.

@JoeStrazzere, I can accept that a standard employment contract in the US doesn't prevent the employer from telling you to be on-call. I cannot accept that there is no employment contract at all. Without employment contracts, in the most basic form, it is impossible for a company to hire and fire employees.

@BartvanIngenSchenau Your inability to accept it does not make it untrue. The core of a US employment contract is literally: "We pay you X as a job title Y." That job title can change without notice. The job responsibilities can change without notice. The only exception is a 1099 contractor working against a statement of work. These positions are fairly rare.

@JoeStrazzere Legally speaking, even in US, contract is not a paper signed by both parties. Contract is an agreement (verbal or otherwise), with specific terms, and some legally required conditions. The question specifically mentions one of the terms of the contract: no on-call, otherwise it is a dealbreaker for the employee. In US, this seems to mean the employee can leave and file to unemployment, as significant changes in employment agreement is grounds for constructive dismissal.

@JoeStrazzere is wrong. Legally an agreement between a person and a company such that the person does certain work and the company pays certain money is a contract. And if there are conditions (the person asked if they would be on call and were told no) then those are part of the contract. Even if nothing was said, but the company has paid them without them being on call that can be an implied condition.

By the way, the comment I wanted to add here is that the OP should consult the legal team of the company.

You can get rid of the employee, but the labor board's going to agree to it being laid off and award unemployment.

@JoelEtherton, that is still a contract and that is my whole point.

"Remember, most of us can be fired summarily without any justification whatsoever." @keshlam, this is an incomplete summary of USA labor relations. Most of us can be dismissed for no particular reason. However, in this question (and in most dismissals!) there is a particular reason. Quoting the Department of Labor: "Retaliation occurs when an employer … fires an employee … for engaging in protected activity."

this answer assumes a lot about what contract the OP signed which is not true for most US workers. There's almost certainly clauses which allow what the company is trying to do. Shocking how many upvotes it got, since it's almost entirely wishcasting of what the answerer wants to be true, rather than is.

@lvella no that's not what the OP said at all -- they said the employee in question inquired about it in an interview and while it is true that some verbal statements can be binding, the contract they signed is what is actually going to matter in any court. But even besides that, there's no indication that the interviewer actually made any promises (or even had authority to make such promises) with regards to being on call in the future.

@lvella this is why you get things in writing, because no court is going to care about vague promises made during interviews when they have a signed superseding contract with clauses that likely say "perform additional duties as assigned".

@BartvanIngenSchenau That's a fair point. It is indeed at it's very core a "contract". It is, however, excessively malleable in favor mostly of employers.