FMLA Guidelines on PIP’s, worker protections, and terminations
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FMLA Guidelines on PIP’s, worker protections, and terminations

Was it a PIP or exercising his FMLA benefits that got him fired?

“I’m sorry, but you failed to improve your performance to the level we expect,” HR Manager Frieda Bulow told operations assistant Jim Rivers. “You didn’t complete your performance improvement plan. So we have to terminate you, effective Monday.”

“I don’t believe this,” Jim shot back. “I was supposedly unsatisfactory in just two of 10 performance categories. I got good ratings in all the others. That should be enough to keep my job.”

“We don’t think so,” Frieda said. “The handbook makes clear that all employees are expected to maintain satisfactory ratings in all categories – no exceptions.”

An unfinished plan
“Even if that’s so, there’s another problem with what you’re saying,” Jim said. “I didn’t have a chance to finish the PIP.”

“You had a chance, but you didn’t take it,” Frieda said. “You had six weeks to complete the PIP.”

“Not true,” Jim responded. “I took leave three weeks into the PIP because I had to help take care of our sick child. You should have given me a PIP extension when I came back from leave under FMLA guidelines. You’re breaking the law by tossing me out on my ear.”

Failure to conform

“Not at all,” Frieda rejoined. “Your termination has nothing to do with your taking FMLA family leave. But it has everything to do with your failure to conform with the PIP. You agreed to the goals – and to the deadline,” she concluded.

“Well, the deadline should have changed when I took leave,” Jim bellowed. “You’ll be hearing from my lawyer!”

Later, Jim sued the company for interference with his rights under FMLA guidelines and a retaliation lawsuit for his wrongful termination

Did he win?


Yes, Jim won.

The court said his FMLA lawsuit for interference and retaliation was strong enough to go to trial.

HR manager Frieda made one key mistake: Given the circumstances, she should have extended the duration of Jim’s PIP to give him a chance to complete it successfully.


After all, Jim agreed to a six week PIP, and made his own decision to take leave before he could finish it.

He needed more time

Here’s what the law says:

  1. It’s illegal to discipline somebody for exercising their FMLA benefits they have a legal right to
  2. You can impose discipline – including termination – on somebody who is on FMLA leave if you can show you would have done the same thing without any FMLA issue.

In this case, Frieda couldn’t prove she would have terminated Jim absent an FMLA issue. The court said he might have completed the PIP if he’d had a chance, but the company refused him that chance because he’d taken leave – leave that was protected under FMLA guidelines. .

Cite: Martin v. Brevard County Public Schools, No. 07-11196, 11th Cir., 9/30/08. Fictionalized for dramatic effect.

HR Café 7.11 12-26-08

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