In today’s litigious workplace, it’s become common for employees to claim their company violated some federal employment law after they’ve been fired for performance issues. Here’s an instance where that strategy didn’t work.

Donna Nicholson was a sales associate for Pulte Homes Corporation, a national homebuilder headquartered in Michigan.

When Nicholson failed to make her sales quotas for several months in a row, Pulte put her on a performance-improvement plan and later fired her when her sales numbers didn’t improve.

Retaliation for caregiving responsibilities?

She sued Pulte under FMLA, saying that she’d been fired because of her need to care for her ailing parents, which should have been protected time off.

But the judge didn’t agree. While employees can be eligible for FMLA leave without actually mentioning the term “FMLA,” Nicholson’s actions didn’t constitute adequate notice of her need for leave.

Nicholson had just one “casual conversation” with her supervisor and other company employees about the challenges of dealing with aging parents and may have mentioned her father’s condition.

As for her mother, Nicholson had only told management that she was driving her mother to medical appointments on her days off and that she could not work outside her normal hours because of her responsibilities to her parents.

Nicholson never indicated that she needed time off to care for her mother, nor did she describe the seriousness of her mother’s condition, the judge said.

The case is Nicholson v. Pulte Homes Corp.

Better safe …

While this case was something of a slam-dunk for the employer — it was apparent the employee hadn’t provided adequate notice of the need for leave and, in the judge’s words, “the undisputed evidence plainly establishes that Nicholson was not performing her job satisfactorily” — it does provide another reminder of how tricky FMLA issues can get.

The lesson? Better to err on the side of caution. If there’s the slightest indication that an employee might be in a position where FMLA leave could be appropriate, have managers send the employees to HR to explore the matter.



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