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Loose lips lose lawsuits: Screen performance reviews for FMLA comments

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in Employment Law,FMLA Guidelines,Hiring,HR Management,Human Resources,Leaders & Managers,Management Training,Performance Reviews

Supervisors often don’t realize that comments they make on performance evaluations can come back to haunt the company. That’s especially true when those comments relate to absences covered by the FMLA.

Frequently, comments like this show up: “Jane was absent for several weeks in 2009, which affected the operations of the office.” If some of Jane’s absences were for FMLA-related reasons, that comment could be used to show interference with her right to take FMLA leave.

That’s why it’s a good idea for HR to carefully review performance evaluations and ask supervisors to refrain from commenting on any difficulties that resulted from FMLA absences.

Recent case: Dorothy Goelzer worked for 20 years as an administrative assistant and got consistently great performance evaluations. Her boss frequently commended her for her excellent attendance record.

Then Goelzer began having health problems, as did her elderly parents. She had to take time off for eye surgery. That year, her supervisor wrote on her performance evaluation that “though Dorothy has had an excellent record in the past (36 hours of sick leave in 2001), she utilized 312 hours or 39 days of sick leave in 2002.”

The next year, Goelzer had to have more eye surgery and missed more work. She got no merit increase that year. On her performance appraisal, her supervisor wrote, “[Y]ou were out of the office having eye surgery in 2002 and 2003. In fact, in the past two years, use of sick leave and vacation combined, you were out of the office 113 days. As the only support person in the office, this has presented challenges in the functionality and duties associated with the office.”

The following year, Goelzer’s health improved, but she took intermittent FMLA leave to take her mother to medical appointments. That, too, was noted in her performance appraisal.

Then Goelzer had foot surgery and needed to take two months of FMLA leave. Her supervisor terminated her, claiming he was going to restructure the job and hire someone with greater skill sets. She was allowed to go on paid leave until her scheduled FMLA leave began, with her termination effective at the end of the leave period.

She sued, alleging interference with her right to take FMLA leave and retaliation for doing so.

The court said her case should go to the jury and that the performance evaluation comments could be used to prove both interference and retaliation. (Goelzer v. Sheboygan County, No. 09-2283, 7th Cir., 2010)

Final note: Have supervisors provide a draft of their proposed performance evaluations. Then double-check to make sure that FMLA leave isn’t being counted as a negative. It would be wise to chart a breakdown of all leave, including leave under the FMLA, for easy reference. Naturally, supervisors are free to consider excessive leave unrelated to the FMLA as a negative factor.

Also remind supervisors that it’s their responsibility to manage their work even when employees take FMLA leave. That may mean coming up with contingency plans such as hiring temporary employees.

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