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It’s your right to demand good performance—even from employees who take FMLA leave

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

Employees who take FMLA leave or engage in other protected activities sometimes look for signs their employer is illegally punishing them. They interpret every legitimate request for improvement as retaliation. Fortunately, courts are beginning to reject those frivolous claims.

Recent case:
Dynetta Cole worked as an executive secretary, answering correspondence for the Illinois Governor’s Office of Citizen Assistance. During her tenure, citizens sometimes complained that Cole was rude and unhelpful. Then Cole was hurt and had to take FMLA leave.

Cole returned to work on a part-time basis, but was often absent or came to work at unpredictable times. That’s when her supervisors presented her with a performance-improvement plan that included telling her bosses when she would be absent and not being rude. When she refused to sign, she was told she would be fired if she didn’t. She still refused and was terminated.

Cole sued, alleging retaliation for taking FMLA leave.

The 7th Circuit Court of Appeals refused to reinstate her case after the trial court tossed it out. It reasoned that merely demanding that an employee work on an improvement plan wasn’t an adverse employment action. The reason: While the plan would have been in place, Cole wouldn’t have lost any pay or benefits. (Cole v. State of Illinois, No. 08-1754, 7th Cir., 2009)

Final note: Always make sure you can prove past performance problems. In this case, it was clear that Cole’s problems predated her FMLA leave.

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