Understanding FMLA Leave and Performance Improvement Plans
What Is FMLA Leave?
The FMLA allows eligible employees to take up to 12 weeks of unpaid leave within a 12-month period for specific reasons:
- Personal Serious Health Condition: Time off to address your own significant health issues.
- Family Care: Caring for a spouse, child, or parent with a serious health condition.
- Pregnancy and Childbirth: Leave related to pregnancy, childbirth, and newborn care.
- Adoption or Foster Care: Time to bond with a new child placed through adoption or foster care.
During this leave, your job is protected, and your health insurance benefits must continue as if you were still working. This federal law aims to balance workplace demands with personal and family health needs, ensuring you don’t have to choose between your well-being and your career.
Job Protection Under FMLA Leave
One of the key provisions of the FMLA is job protection. When you return from leave, you’re entitled to be reinstated to your original job or an equivalent position with the same pay, benefits, and working conditions. Employers cannot use your FMLA leave as a negative factor in employment decisions, such as promotions or terminations.
Retaliation and Performance Improvement Plans (PIPs)
Despite these protections, some employers may attempt to retaliate against employees who take FMLA leave. Retaliation can manifest in various ways, but a tactic for setting the groundwork for retaliation is placing an employee on a Performance Improvement Plan (PIP) shortly after they return from leave.
What Is a PIP? And How Can It Be Misused? A PIP is generally a formal document outlining specific areas where an employee’s performance does not meet expectations, along with steps to improve. While PIPs can be legitimate tools for addressing performance issues, they can also be misused.
What does it mean to misuse a PIP? Companies will use the PIP to create a paper trail for “failures” by an employee so they can point to the issues written in the PIP as the justification when they eventually terminate an employee.
Why would an employer want a paper trail? Most jobs are considered “employment at-will.” This allows the employer or the employee to terminate the employment relationship at any time, with or without cause or prior notice. The employers can dismiss employees for any lawful reason—or even no reason—provided the termination doesn’t violate contractual agreements or statutory protections like anti-discrimination laws. So, if the circumstance arrives where an ex-employee claims they were terminated for an illegal reason, like for rightfully going on FMLA leave, the employer can counter by pointing to the legal reasons outlined in the PIPs that were filled out during the time when the termination was approaching. It can be used as legal protection (although not always successfully). Essentially, the employer may use a PIP to create a convincing argument that the employee was terminated for a legal Employment At-Will reason instead of an illegal reason.
Connection Between Retaliation and PIPs
If you have a strong performance record and are suddenly placed on a PIP after taking FMLA leave, this could indicate retaliation. The timing suggests the PIP is not about performance but rather a strategy to push you out of the company.
Legal Relevance of Retaliation and PIPs
Retaliation for exercising your FMLA rights is illegal. The connection between retaliation and PIPs becomes legally significant when the PIP is used as a cover for discriminatory practices.
Evidence to Support Retaliation Claims
- Timing of the PIP: A PIP issued soon after returning from FMLA leave can suggest a retaliatory motive.
- Performance History: Consistently positive reviews prior to the leave can counter claims of poor performance.
- Inconsistent Treatment: If other employees with similar performance are not subjected to PIPs, this disparity can support your case.
Timing and Proximity in Proving Retaliation
Timing is a critical factor in proving retaliation. Courts often consider the temporal proximity between the protected activity (taking FMLA leave) and the adverse action (like being placed on a PIP or terminated).
Short Time Frames Strengthen Your Case
- Immediate Adverse Actions: If negative actions occur shortly after your leave, it strengthens the inference of retaliation.
- Patterns of Behavior: A sudden change in how you’re treated can be significant.
Longer Time Frames Often Require Additional Evidence
- Documented Hostility: Emails or comments that show ongoing resentment toward your leave.
- Policy Violations: Evidence that the employer did not follow their own procedures in issuing the PIP or termination.
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Disclaimer
The information provided in this blog post is for informational purposes only and is not intended to be legal advice. Laws vary significantly from one jurisdiction to another, and therefore, the concepts discussed here may not apply universally or to every case. Furthermore, laws, especially in this field, are subject to frequent changes, so there is no guarantee that the information presented is current or up to date at the time of reading.
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