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You can’t shave employee’s bonus just because she took FMLA leave

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in FMLA Guidelines,Human Resources

When the company Valerie Dierlam worked for was sold, the acquiring firm offered her a bonus of half her salary if she stayed for one year. She did, but the company trimmed her bonus because she took 12 weeks of approved leave under the Family and Medical Leave Act (FMLA) to adopt a child.

Dierlam resigned and signed a separation agreement that waived her right to sue under FMLA. But she sued anyway, alleging that reducing her bonus violated the law.

The company argued that because Dierlam wasn't "actively employed" the full year, she wasn't entitled to the full bonus. Plus, she had signed a waiver. But a district court did not buy either argument, ruling that the company violated FMLA by cutting her bonus and trying to enforce a bogus waiver.

Reason: When the company granted Dierlam's request for FMLA leave, it triggered her right to be restored to an equivalent job with the same benefits and conditions. (Dierlam v. Wesley Jessen Corp., d/b/a/ CIBA Vision, No. 01-C-9857, N.D. Ill., 2002)

Advice: Companies that merge or change ownership sometimes may offer "stay bonuses" as an incentive for employees to remain in their jobs. You can reduce these payments if workers don't live up to their part of the bargain for almost any other reason, but not for taking FMLA leave.

Bottom line: When handing out any attendance-related bonus, don't count FMLA leave as time off.

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