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Poor review not grounds for FMLA retaliation suit

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

All by itself, a negative performance review after an employee has taken FMLA leave doesn’t give the employee a reason to file a lawsuit. Unless the poor review is accompanied by something tangible—like a demotion or the loss of a pay increase—courts won’t see the review as retaliation.

Advice: Never consider holding FMLA leave against an employee. Base your review strictly on work performed while the employee wasn’t on leave.

Recent case: Shakeel Tirmizi took FMLA leave to care for his autistic son. When he returned, he got a performance review that was lower than one he received before he took time off.

He sued, alleging retaliation. But the court tossed out the case, reasoning that a review that didn’t trigger something like a demotion or lost pay isn’t an adverse employment action. (Kramer, et al., v. Exxon, No. 07-0436, DC NJ, 2009)

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