There may not be a more toxic combination in the land of Human Resources: a poorly performing employee and an untrained boss who just can’t keep his mouth shut.
The latest edition involves Debby and her boss, Jason.
I can’t tell precisely what Debby did for her employer, Wells Fargo, but it’s safe to say she interacted with a number of Wells Fargo’s clients and had a sales quota. That’s enough background for this story because it is undisputed that clients began complaining extensively about Debby, and she fell miserably short of her sales goal. Nearly half way through the sales year, Debby had only met about 11% of her entire sales goal.
That’s not good.
As these stories go, shortly after being told that she was “off track” in nearly every work category, Debby took medical leave for five weeks due to a medical procedure performed on her neck. The time off did not rejuvenate Debby. Upon her return, her performance further deteriorated to the point that termination was the only option. Wells Fargo had all the ammo it needed — more client complaints, poor sales numbers and that fact that Debby simply wasn’t trying anymore.
Unfortunately for Wells Fargo, however, Debby’s boss snatched defeat from the hands of victory. In an email recommending Debbie’s termination, he outlined her performance issues but inexplicably added that Debbie’s termination “was justified because ‘Debby submits a request for medical leave.’”
Groan.
Last month, a court refused to dismiss Debby’s FMLA claims, finding that the boss’ email is evidence that she may have been terminated because she took FMLA leave. Stewart v. Wells Fargo (pdf)
Insights for Employers
Let’s not dwell on these facts any longer. Let’s move straight to the lessons learned, shall we?
1. Employers, Your Front Line Managers Are Killing You. For me, the most powerful line in this court case wasn’t the boss’ foolish email. Rather, it was his acknowledgment in his deposition that he was “not really familiar with FMLA leave” because he was “on the front line.”
Precisely.
Employers, your front line managers like the one here are ticking time bombs. Sure, they generally are very good people, and they mean well. But you also put them on the front lines with no FMLA training whatsoever. So, why are you surprised when your managers send emails like the one above?
Please, please, please train your managers on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. Included in this training, of course, should be a stern warning against any stray comments about an employee’s medical leave. Investing a couple hundred bucks now to conduct effective FMLA training will literally save you hundreds of thousands when the real life situation presents itself.
2. Remember that similarly situated employees can sink your FMLA case. The court refused to dismiss Debby’s case for the additional reason that other employees also missed their sales goals and were not terminated like Debby. Before you hit the termination button, it is critical that you compare the employee at issue to those she will be compared to. Are others missing their sales mark or otherwise under-performing? How do you differentiate them?
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2016) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
