A Florida employer evaluated its sales employees’ performance largely on their ability to meet quotas for new customer interactions, potential sales, and closed sales. During an 8-month period one salesman’s performance began to decline, including taking several sick days and failing to make any progress towards his quotas. The supervisor issued a written warning to the employee which set performance standards that the employee was expected to meet to demonstrate improvement.

During the next 2 weeks the employee took a 2 ½ hour lunch due to “car trouble,” he was absent an unreachable, missed a conference call and missed a mandatory training, again due to “car trouble.” The Supervisor decided to issue the employee a Final Written Warning based on his conduct following the Initial Warning, but before the document could be issued, the employee submitted an electronic application for FMLA leave, and began his leave that day.

On the morning the employee returned from FMLA leave the supervisor issued the Final Warning. Although the employee’s overall sales quotas remained the same, the Final Warning required him to meet 100% of his sales goals each fiscal week starting the next week, rather than each fiscal month as the Initial Warning had required. The employee resigned and sued claiming, among other things,   interference under the Family Medical Leave Act (FMLA). Pecora v. Adp, 2017 U.S. Dist. LEXIS 17230 (M.D. Fla. Feb. 7, 2017)


The employee claimed that the employer interfered with his FMLA rights either by terminating him or by failing to restore him to an equivalent position upon his return from FMLA leave. In general, an interference claim requires an employee to demonstrate only that he was entitled to an FMLA benefit, and that the employer interfered with that benefit.  The employee is not required to prove that the employer intended to deny the benefit, only that the employer’s actions interfered with the benefit; and the employer’s motives are irrelevant.

The Court noted that because the supervisor decided to issue the Final Warning before knowing that the employee was taking FMLA leave, the timing of her decision forecloses a retaliation claim, but does not foreclose the employee’s interference claim, if the Final Warning interfered with the employee’s FMLA rights. The District Court for the Middle District of Florida concluded that the evidence showed a genuine dispute of material fact on this issue, which prevented the employer from winning a Motion for Summary Judgment.

Florida employers are reminded that an employee has the right following FMLA leave “to be restored by the employer to the position of employment held by the employee when the leave commenced” or to an equivalent position.  It has been recognized that when an employer sets performance standards for its employees, the FMLA can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.

For purposes of Summary Judgment, the Court agreed with the employee’s argument that the employer interfered with his FMLA leave by denying him the right to be restored to his previous position when he returned from FMLA leave. The Court reasoned that, prior to his FMLA leave, the employer set performance standards in the Initial Warning that required him, among other things, to have “[a] minimum of 100% of quota for each month beginning Fiscal September,” the following month. Just seven business days later, the employee took FMLA leave, and on the morning he returned, the supervisor issued the Final Warning that imposed performance standards including, among other things, “[a] minimum of 100% of quota for each Fiscal Week beginning fiscal week 2 in November,” the following week.

In this case, the employee did not have access to his work e-mail account or to the employer’s  sales software, and was not in contact with potential customers during his two month FMLA leave. Nevertheless, the Final Warning delivered on the day he returned from leave modified his performance standards by requiring him to hit 100% of his sales quotas beginning the next fiscal week, rather than over the fiscal month as the Initial Warning required.

The Court’s ruling provides guidance to Florida employers. “There is evidence indicating that these heightened performance standards were unattainable as a result of [the employee’s] FMLA leave. The more onerous performance standards in the Final Warning were essentially conditions for the employee’s return to employment after his FMLA leave, regardless of whether the employer intended them to have that effect.

Employers are cautioned that even when weekly quotas, instead of monthly quotas, are typical in an employer’s final warnings and even when an employer has legitimate reasons for issuing a Final Warning, the reasons for a Final Warning and its performance standards can be found by a court to be immaterial to whether the employer interfered with an employee’s FMLA rights by setting performance standards that effectively penalizes him for being absent during statutorily-protected leave.  Employers should keep this in mind when including language in a Final Warning expressly provided that “further progressive discipline, up to and including termination, will occur” if “immediate and consistent improvement is not demonstrated.”  Such language may be held by a court, as it was in this case, to be evidence as to whether the employee was unable to complete the plan as a result of his being on proper FMLA leave.

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Is a Florida employer required to adjust performance standards to avoid penalizing an employee for being absent during FMLA-protected leave?

Law Office of David Miklas, P.A.

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