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You don’t have to ignore harmful effect of absences

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in FMLA Guidelines,Hiring,Human Resources,Leaders & Managers,Performance Reviews

Calvin Keeler started as a senior vice president overseeing 85 employees. He earned bonuses exceeding $30,000 while enjoying a large office. Within a few years, he had been downgraded to a vice president with no bonus and no staff. He even lost his big office and parking space.

During his gradual decline, Keeler took care of his sick wife and often had to take time off work under the Family and Medical Leave Act (FMLA). In a poor performance review, the company noted that these absences had caused his attendance to become unpredictable. Keeler sued.

A court dismissed his claim, saying that legitimate FMLA leave can cause serious problems in employees' performances, and that not every employer comment about those problems is considered an adverse employment action that violates the FMLA. (Keeler v. Putnam Fiduciary Trust Co., No. 00-1237, 1st Cir., 2001)

"Keeler's loss of responsibilities and staff, even his lower rating and the elimination of bonuses, are part of a downward trajectory that began long before" he took leave, the court said.

Advice: This case highlights a key Labor Department regulation: It's illegal to use an employee's FMLA leave as a negative factor when determining employment actions, such as promotion, hiring and discipline.

You can, however, communicate with the employee about any performance problems caused by the leave. Just don't let the leave itself be a trigger for your decisions affecting the employee's pay, position or conditions of employment.

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