Economic times remain tough, and businesses are still finding they have to cut costs to survive. And cutting costs often means looking at a possible reduction in force.
In most organizations facing that difficult prospect, a team of managers has to decide where the cuts should be made and what criteria to use when making those cuts.
No doubt the managers understand that they can’t consider employees’ use of as a factor in the decision. On the other hand, you don’t want to set up a situation in which employees who are using leave (or will soon do so) are exempt from consideration, either. That would hardly be fair—nor is it required under the law.
The best approach: Make sure the decision-making team doesn’t have access to information about FMLA usage—past, present or pending. Isolate them from that information so they can base their decisions strictly on legitimate business reasons and nothing else.
Recent case: Nicholas Salameh worked for Sears and got good reviews. He was, however, at the bottom of the ranked performance list during his last review, even though that meant his performance was fine. His co-workers simply performed at a higher standard.
Then Salameh began having anxiety attacks and lost all his hair. He approached HR about a possible FMLA leave so he could undergo treatment. The HR staffer who handles FMLA requests gave him the paperwork and approved leave that would begin on a certain date.
Meanwhile, a different part of Sears’ HR function was working on a reduction-in-force plan. It recommended cutting the employees at each location who achieved the lowest scores on their most recent . HR forwarded that recommendation to supervisors.
Salameh was selected for layoff. Coincidentally, Salameh’s supervisor found out about his pending FMLA leave at about the same time. Sears went ahead with the termination a day before his leave was to start.
Salameh sued, claiming he had been terminated for requesting FMLA leave.
The court rejected his claim, noting how Sears kept the decisions on termination and FMLA leave separate. It said employers shouldn’t be forced to give special advantages to those on FMLA leave, but are free to implement decisions clearly made without knowing about leave.
The court said any other decision would amount to forcing employers to “set aside reasonable business decisions in fear of being sued under the FMLA.” And, reasoned the court, employees who got wind of a possible reduction in force might apply for FMLA leave as a way to avoid being cut.
That’s not how the FMLA is supposed to work. Employees don’t get greater protection from layoffs because they are eligible for FMLA leave. (Salameh v. Sears Holding, No. 08-C-4372, ND IL, 2010)
Final notes: This is a good, well-reasoned decision. It recognizes the reality of business needs during these difficult economic times and protects employers that try to do the right thing when downsizing. Sears used a reasonable selection method based on performance appraisals that had been fairly prepared before the layoffs.
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