“I’m on FMLA leave and was just notified I’ll be placed on a Performance Improvement Plan (“PIP”) when I return. Is this legal?”

Question: First, Alan, I want to tell you that you are a beautiful person because you help so many people during their difficult times.

I know that I am a very good employee, because I believe in kindness, caring and hard work. I work from 9 to 15 hours each day, and over the weekend, too. My performance evaluation last year was very good. Last year I also received the highest possible bonus.

In mid-May, my husband broke his leg badly, and became completely disabled. A few days later, I was approved by my employer for a FMLA leave of absence. Yesterday, I received an email from my boss. In it he told me that when I return I will be placed on a Performance Improvement Plan. Is that legal?

Germantown, Maryland

Answer: Thank you so very much for your kind words. It is our chosen mission to help people, and kind words like yours are our best rewards.

First, I would suggest you review a newsletter that I wrote last summer entitled “50 Things You Need to Know About FMLA.” To do so [click here]. Please read, especially, numbers 45, 46 and 47. I would also suggest you look over our section about Performance Improvement Plans on the Resource Center. To do so [click here].

Second, so many people are writing in about Performance Improvement Plans that I prepared a video on “How to Deal with Performance Improvement Plans.” To view it [click here]. I have also written a new newsletter on the same subject. To do so [click here].

Third, what your boss is doing is probably dishonest, and illegal. Your good work habits, your dedication, your positive performance appraisal last year, and your good bonus all point to one thing: you are a good employee, with good performance.

My guess is that your employer is either (a) trying to do this to eventually fire you and not have to pay severance, which is dishonest and illegal, or (b) doing it to retaliate against you for taking FMLA leave to help your husband, which is also dishonest and illegal.

This is what I suggest you consider doing: write an email to your boss, and to the company’s CEO, telling them – with respect and without criticizing anyone personally – the thoughts outlined in these five (5) steps:

(1) mention all of the facts I noted above (and any others you may know of) to show that your performance is NOT poor;
(2) mention to them that, if the facts are not correct, then the conclusion that you deserve to be put on a PIP must be incorrect, too;
(3) tell them that the process being used seems to be wrong, because you did not get any warning letter, you were not given an opportunity to present your side of the story, and being called at home, while you were taking care of your husband makes it look like things are being unnecessarily rushed;
(4) tell them this seems to be motivated either as retaliation for your taking FMLA Leave (which is highly illegal) or an attempt to fire you without severance (which could be fraudulent); and
(5) then insist that the PIP be withdrawn, or investigated by an “outside” independent person, or you be given a good opportunity to refute it, perhaps with a lawyer.

Let me summarize:

(1) Dispute the facts;
(2) Dispute the conclusion;
(3) Dispute the process;
(4) Dispute the motive behind the PIP; and
(5) Insist on Withdrawal or Investigation of the PIP.

Tell them that this appears to be a violation of law, and that you have to help your family pay bills, and would like to know if you are permitted, if necessary, to write to the Board of Directors to ask them to intervene or investigate.

If you do this, remember that you are not to be confronting people, but you are to be confronting a problem, a problem that threatens your ability to provide a home, feed and care for your family.

We offer a Model Letter for “Pushing Back” to a Performance Improvement Plan, which you can obtain by [clicking here].

This is how we recommend people in your circumstances help themselves. I can’t advise you or counsel you as your attorney; instead, you might consider locating an experienced employment attorney in your city, and meeting her or him for a consultation. But what I’ve described above should prove a valuable guide for your thoughts on how to proceed.

Have courage. Don’t fear standing up for yourself. Simply speak the truth, and respectfully insist on what is right, what is fair and what is legal.

I truly hope this helps you, and all who face these PIP’s without good reason.

Best, Al Sklover

© 2009 Alan L. Sklover, All Rights Reserved.

Print Article