Unrealistic PIP left employer exposed to FMLA retaliation lawsuit

Don’t put an employee on a demonically tough performance improvement plan (PIP) to set the person up for failure. It may turn around and bite you in court, resulting in a big FMLA compliance violation.

That’s what happened to an employer in Oklahoma that fired a salesman who missed his PIP goals. A federal appeals court said the goals appeared burdensome and unrealistic, and it seemed the company’s real issue with the salesman was that he had taken FMLA leave. And, of course, it’s illegal to punish an employee for doing that.


The salesman’s numbers were above average, and he’d just received a good review when a new sales manager came in. The manager criticized him, and the salesman soon took five weeks’ FMLA leave to be treated for alcoholism.

Shortly after the salesman returned to work, the manager put him on a PIP. A few weeks later, he was fired after acknowledging he had fallen short. But take a look at some of the PIP goals. The manager required him to place as much or more of two key products in 30 days as the salesman had originally been expected to place in the first eight months of the year.


And the PIP’s reporting requirements were “onerous,” the court said. They were a blaring violation of FMLA compliance guidelines. For one thing, the salesman had to send the manager a minutely detailed, nightly e-mail addressing an 11-line laundry list about the day’s activities and giving an equally detailed plan for the next day.

Takeaway: A PIP should be worked out between manager and employee, and should be achievable. A person who is disciplined based on a punitive or impossible PIP may be able to make a very good FMLA claim and accompanying retaliation lawsuit.

Cite: Burris v. Novartis Animal Health U.S., No. 08-6030, 10th Cir., 1/27/09.

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