When faced with a reduction in force, employees who are out ondon’t enjoy greater protection than other employees. For example, being on does not exclude an employee from being considered for the RIF. That would give those on leave rights above and beyond those of other employees.
Recent case: Kim Wolpert worked in sales for Abbott Laboratories. When she became pregnant, she took maternity leave under the FMLA. While she was out,planned a reduction in force.
A supervisor created a spreadsheet on which he ranked employees based on their performance scores. But the formula he used contained an error, so employees with high scores actually ended up ranking below employees with the lowest scores. As a result, Wolpert was on the cut list.
She was allowed to take the rest of her maternity leave, but then was terminated after.
Meanwhile, the supervisor discovered that his spreadsheet was wrong. But rather than reverse the RIF, Abbott Labs left things alone.
Wolpert sued, alleging she had been targeted because she was on FMLA leave.
Abbott argued that wasn’t the case, but that Wolpert and several others lost their jobs because of an error in the spreadsheet.
The court agreed that the error was a neutral factor that affected all high-scoring employees whether they were on FMLA leave or not. It tossed out Wolpert’s lawsuit. (Wolpert v. Abbott Laboratories, No. 08-4849, DC NJ, 2011)
Final note: Wolpert still has a claim pending. She testified that she missed out on a promotion before the RIF was implemented because another manager had an anti-pregnancy bias. She argued that if she had been promoted, she never would have been riffed. The court said that claim could go to trial.