You’ve heard it over and over again: Don’t take into consideration when making employment decisions. But you don’t have to take that caveat to extremes.
In some limited circumstances, you can use what you learn while an employee is on leave to decide whose job should go when it’s staff-reduction time.
For example, say an employee goes on FMLA leave and you discover that his duties are still being fulfilled. If it seems then that your organization really doesn’t need that position, you can cut the job. That’s not retaliation for taking FMLA leave, but rather an eye-opening revelation that your organization has too many employees.
Recent case: Harry George worked for NAPA Auto Parts for many years. He performed general warehouse work and sometimes drove a delivery truck.
When George suffered an injury at work, he took FMLA leave, followed by a few months of short-term disability leave. While he was away, the company concluded it had to cut its labor budget and directed managers to identify fat to trim. George’s managers noticed that the work was still completed even without him. They proposed eliminating his job and several others.
He sued, alleging that NAPA cut his position because he took FMLA leave. The court disagreed and dismissed the case. It said could look at the workflow while George was on FMLA leave when deciding what positions to cut. The reason NAPA eliminated his job had nothing to do with taking FMLA leave. (George v. Genuine Parts Company, d/b/a NAPA, No. 3:04-108, WD PA, 2007)