performance improvement plan

All the single ladies . . . all the single ladies . . . 

Now put your hands up, oh, oh, oh . . . 

Imagine marketing director, Michelle, jamming to this Beyonce song in the middle of AT&T Stadium in Dallas. On that very day, however, she’s supposed to be recuperating at home after suffering a panic attack at work.

Days earlier, Michelle had been given a performance improvement plan (PIP) to address her poor performance. By all accounts, she deserved it, since she struggled with the volume of the work required for her position. Although Michelle agreed that she could not keep up and her performance was deficient, she didn’t think she deserved a PIP.

Upon receiving the PIP, Michelle immediately left work. The next day, she called off, reporting that she was “not well to return back to work” and would be filing for short-term disability benefits. Less than one week later, however, Michelle was spotted at a Beyonce concert – in her employer’s corporate sky box.

I’m not kidding.

When word spread that Michelle was at the concert, Michelle’s boss left her a voicemail, asking to discuss why Michelle thought was appropriate to attend the concert when she was not working. Michelle responded by email that she had not been released by her doctor to meet and that as soon as she was released, she would be willing to meet.

Her boss responded by email, giving her a deadline to respond by later that day. When Michelle failed to respond, she was terminated for three reasons: poor work performance, her attendance at the concert while on leave, and her failure to respond to her boss’ inquiries. As the story goes, Michelle sued her employer, claiming it interfered with her FMLA leave and retaliated against her for taking leave.

‘Cause if you liked work, then you shouldn’t have taken leave
If you liked work, then you shouldn’t have taken leave
Don’t be mad once you get yourself canned
If you liked work, then you shouldn’t have taken leave
Oh, oh, oh
Oh, oh, oh, oh, oh, oh

Insights for Employers

With Beyonce’s “Naughty Girl” playing in the background, I’m sure, the court quickly dismissed Michelle’s FMLA claims, finding that her employer had an honest suspicion that she was abusing leave, and her failure to respond to her boss’ inquiries could only lead the employer to conclude that she was indeed taking leave for reasons having nothing to do with the FMLA. Jackson v. BNSF (pdf)

Michelle’s missteps actually provide some helpful practical pointers for employers:

1. You can require your employees to respond to your reasonable inquiries while they are on leave. Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave.  This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as she did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Yet, this court decision is an endorsement to carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave.

2.  You CAN Terminate Employee Who Fail to Communicate with you while on leave. Similarly, employers feel paralyzed to take any action against an employee while they remain on leave.

Stop feeling powerless!  

What I love about this court decision is that it reaffirms the principle that the employer was well within its right to terminate Michelle’s employment after she failed to communicate with the employer. The court got it right — when an employee fails to communicate with their employer, they suffer the consequences.

webb.jpgFeel free to call me out for shamelessly piling on veteran broadcaster Brent Musburger.  But by now, you know that issues arising under the Family and Medical Leave Act are part of the American fabric as much as baseball and apple pie, right? Well, at least on this blog it is.

For those of you living under a rock for the past 48 hours, let me set the stage before I get to the question posed in the title above. Musburger served as the play-by-play announcer for the BCS National title game between Alabama and Notre Dame earlier this week. After two quick touchdowns put Alabama up 14-0, ESPN began scrambling for a new story line in what was setting up to be a blow out.  So, the camera panned (several times) to Katherine Webb, the girlfriend of Alabama Quarterback A.J. McCarron.  She also happens to be a former Miss Alabama.  Musburger fawned over the attractive Webb on national TV, calling her “a lovely lady” and “beautiful,” and then engaged his broadcasting partner and former college QB, Kirk Herbstreit, further in the following banter:

Musburger: “You quarterbacks, you get all the good-looking women . . . what a beautiful woman.”

Herbstreit: “Wow!” 

Musburger: “Whoa!”

Herbstreit: “AJ’s doing some things right down in Tuscaloosa.”

Musburger: “If you’re a youngster in Alabama, start getting the football out and throw it around the backyard with pop.”

Access the actual video clip here.  Musburger was not the only one in America to notice Webb.  In the past 48 hours, her twitter followers have jumped from 2,000 to over 200,000.  

The criticisms of Musburger’s comments have been fast and furious.  Musburger has been more than embarrassed, culminating in this apology he and ESPN issued to Webb and viewers.     

Stress-induced leave of absence

Day in and day out, oodles of employees claim that an embarrassing situation at work or a difficult boss causes them to suffer work-induced stress that requires a leave of absence from the job.  So, Musburger’s situation got me thinking (since all things in life indeed come back to the FMLA): If Musburger claims he has suffered job-related stress as a result of the backlash he’s received inside and outside of ESPN, can he seek FMLA leave?  

In a word, yes (a reason why I will always have work as an employment attorney).  Unfortunately for employers, there are handfuls of cases from various states across the country where courts have found that stress caused by the workplace can be a basis for taking leave from work so long as the stress rises to the level of a serious health condition that renders them unable to perform their job. 

Take, for example, Meadows v. Texar Federal Credit Union.  There, the plaintiff, a former operations manager at the credit union, was placed on a performance improvement plan (PIP) because of performance problems.  Thereafter, Meadows’ manager met with her on several occasions to inform her that her performance was not improving and that she would be terminated in 30 days if her performance did not improve.  Rather than taking her performance up a notch, Meadows sought FMLA leave for stress caused by the demands at her job.  While on leave, she engaged in activities of everyday life: shopping, taking trips, attending ball games and social functions, traveling with her son to a basketball camp out of town and to an out of town birthday party, watching television, and shuttling her children to and from school and sports practices. However, her health care provider confirmed that she could not work.

In a blow for employers, the court refused to dismiss her FMLA claim, finding that the evidence showed that the plaintiff was:

depressed, stressed out, nervous, and upset.  She had become this way because of what she believed to be unjust criticism of her job performance by [her supervisors] and because she felt [her supervisors] had threatened to fire her.

As a result, the court determined that a jury would need to decide whether the plaintiff suffered from a serious health condition under the FMLA that required her to take leave from her job.


Insights for Employers

Note to ESPN: Be afraid. Be very afraid.

Note to all other employers: When faced with a situation like the one in the Meadows case, before you panic, use the tools given to you by the FMLA: 1) insist upon complete and sufficient medical certification (so you have a clear picture of the employee’s medical condition and their need to be off); 2) seek clarification from the employee’s health care provider if the employee is not providing a sufficient and complete certification; 3) if you have reason to doubt the certification, seek a second and third opinion; 4) seek recertification every 30 days while the employee is on leave to maximize your understanding of the continued need for leave; and 5) maintain regular communication with your employee so you remain up to date on their status and can better gauge their ability to return to work.

If that fails, it’s time to call your friendly neighborhood employment attorney, and best wishes on the wild ride ahead.

Photo credit: USA Today