“What can I do if I was put on a Performance Improvement Plan in response to my taking a FMLA leave of absence?”

Question: Hi, Alan. I work for a non-profit in Baltimore. Late last year my wife and I added a baby girl to our family. I used the federal Family and Medical Leave Act (“FMLA”) and stayed at home with my daughter for 12 weeks.

When I returned I was assigned to a very different position, and because of that I filed a Complaint with the federal Department of Labor (“DOL”), which handles FMLA violations.

I have spoken to HR about several issues with my immediate supervisor after trying to resolve things with her, with no success. Since then, this supervisor has coerced others at my work to spy on me, to create false accusations, and treat me with absolutely no respect at all.

I was recently placed on a Performance Improvement Plan (or “PIP”) which requires that I improve within 30 days, or face termination. The PIP charges me with such subjective things as “not working with the team” and “following staff when they go to lunch.” I responded to the PIP, in writing, in which I respectfully pointed out that (a) these allegations are so subjective that I can’t figure out what, exactly, I have to do to “improve,” and (b) they are not indications of “performance” of my job. For two weeks, I have not heard back. HR contacted me and said that they do not have a policy of investigating claims of FMLA-related retaliation.

I am considering going to our organization’s Board of Directors and/or hiring an attorney. What do you think?

Baltimore, Maryland

Answer: Mike, it seems to me that you have three options, and that you should take them in this order:

1. File a Supplemental Complaint Naming Your Supervisor:  First, I’m not sure whether or not you know it, but corporate managers and officers may be personally liable for interfering with FMLA rights, and retaliating against those who make use of those rights to help take care of family members. For this reason, I believe your first step would be to supplement your Complaint filed with the federal Department of Labor (often called the “DOL”) by adding a second complaint for retaliation against your immediate supervisor.

2. (PERHAPS) Send Copies of Your Original and Supplemental Complaints to the Board: I also suggest you send copies of your Complaints to the Members of the Board of Directors of your employer and ask them why the organization has no policy of investigating claims of FMLA-related retaliation. Tell them that you believe it is (i) unwise, (ii) probably a violation, itself, of the federal FMLA to refuse to investigate a claim of retaliation, and (iii) suggestive of insensitivity of the organization to the importance of the FMLA law.

HOWEVER, do not do so until you have asked HR – in an email – whether or not your contacting the Board Members about this is permitted, or prohibited. In some organizations, directly contacting the Board of Directors is considered violating the “chain of command,” and for this reason a reason to be fired. Contact the Board Members only after you have written (email) proof that your doing so will not result in your being fired for that reason. Remember, you are already on a Performance Improvement Plan.

3. Surely, It is Time to Consult an Employment Attorney.  From the information you have provided me, it seems that it is time to have professional guidance in each step forward, or actual legal representation in taking those steps. You can probably locate experienced employment attorneys in your locale by contacting your local bar association, or your state’s bar association, and requesting referrals.

Sadly, employers sometimes feel “put out” when employees exercise their FMLA rights. Perhaps even more sadly, I would not be surprised if your supervisor feels that men do not need to take time off for “paternity” leave, as you have. It is your right to do that – and to the ultimate benefit of your new child. The law says that time with both mothers and fathers helps children, and so has provided for men, too, to have time off when “new ones” arrive on the scene. My favorite saying about children is this: “Do you know how they spell ‘love?’ T – I – M – E.”

Of course, don’t stop trying to show, by emails, that you are doing your best to comply with the Performance Improvement Plan.

If you would like us to refer you to experienced employment law counsel in your home town [ click here.]

Good luck in moving forward, and in defending yourself. I really mean it.

Best, Al Sklover

©  2010 Alan L. Sklover, All Rights Reserved.

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