When an employee takes FMLA leave, is an employer obligated to adjust its performance standards so as to avoid penalizing the employee? According to a recent federal court decision, the answer is Yes. And failing to do so sets the employer up for an FMLA interference claim.

The Facts

Take this situation: Jeff was a salesperson for a company that manufactured corrugated packaging products. Pagel began experiencing chest pain and labored breathing, causing him to undergo a battery of tests. Tests revealed a blockage in a portion of his heart, and he was later admitted to the hospital to treat the blockage. Five days before his scheduled heart procedure, Jeff met with his bosses to discuss his year-to-date performance. The bosses weren't happy: they had observed a noticeable decline in Jeff's sales revenue and volume over the past two years and his year-to-date numbers were even worse.

Jeff didn't agree with his bosses' assessment, claiming in large part that the employer didn’t adjust his sales expectations for the time he took FMLA leave. The meeting ended with a stern warning to Jeff: improve your performance or face termination.

Several weeks later, while Jeff was in an Iowa medical clinic for follow-up tests, his boss contacted him and informed him he would be traveling to Jeff's sales territory the following day to tag along on some sales calls. There was one critical issue -- sales calls typically were scheduled one week in advance to give the client enough notice and the employee enough time to prepare. Jeff had no time to set up a full day of calls or to prepare for them. Ultimately, Jeff and the boss made two client visits the following day. By all accounts, Jeff did not perform well.

As these stories tend to go, Jeff was terminated shortly thereafter for continued poor performance, including the awful sales calls with his boss.

The Ruling

Jeff filed an FMLA interference and retaliation claim, and the Court refused to dismiss it. Pagel v. TIN, Inc. (pdf). Interestingly, the Court noted:

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.

Particularly troublesome to the court was evidence that: 1) the company terminated Jeff for not meeting sales expectations, even though he was absent a number of days for FMLA-protected treatment; 2) his boss relied on inaccurate data in finding that he not meet some of the company's reporting requirements; and 3) the boss insisted on making client sales calls even though the standard approach required one-week advance notice to the client, which could indicate that the boss was setting Jeff up to fail.

Insights for Employers

Surely, I can be accused at times of drinking the employer cool-aid, but I wonder whether the actual facts here lie somewhere in the middle. Put aside the few weeks of FMLA leave that Jeff took, his sales numbers declined for two years! Had the employer took action just a few months earlier, it arguably would not have faced any liability at all, since no employer has to live with an employee who misses the mark for such a prolonged period of time.

However, the timing of these events, the failure to account for FMLA leave in its performance standards, and the insistence of a sales ride along on short notice was enough to sink the employer. A few words of caution in these situations:

1. Eric Meyer puts it well: the employer failed to hire slow and fire fast. In other words, the employer should have acted long before Jeff's heart blockage to identify performance issues and communicate them to the employee. By pushing off the conversation about continued performance problems, employers shoot themselves in the foot.
2. Employers should adjust performance standards during an employee's FMLA leave. Why? Because courts say so!
3. Don't set yourself up for a retaliation claim. The employer here may very well have been frustrated with Jeff's prolonged deficient performance, but creating a separate set of performance expectations for an employee taking FMLA leave is a recipe for disaster. For example, if the standard is to set up sales calls one week in advance to give the client and employee time to prepare, give the employee time to do so. Setting an unlevel playing field for the employee in this situation significantly increases the risk of a retaliation claim.