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Beware impromptu evaluations to decide RIFs

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in FMLA Guidelines,Human Resources

If you must cut staff, you naturally want to terminate the least productive workers and keep the most productive ones. You could make the decision on the basis of past performance evaluations.

But what if there aren’t any? You might be tempted to have super­visors review the employees and use that as the basis for the RIF list.

Watch out! You could be courting trouble.

Recent case: Mary Lee worked at a hospital, performing routine medical tasks such as bone-density tests, blood draws and X-rays. When she developed a neurological disorder, she told her boss. The manager in turn told Lee that the condition might be debilitating.

Later, Lee had to have surgery to remove a growth that contributed to her nerve problems. She filled out an FMLA form and her leave was approved. However, her supervisor said she should have given more notice.

Then the hospital informed the supervisor that she would have to cut one person from her staff. It provided standard performance review forms to complete and said the scores would determine who stayed employed. The supervisor rated Lee far lower than anyone else, so Lee lost her job.

Lee sued, alleging that the real reason she was picked was her supervisor’s resentment that she took FMLA leave on short notice.

The hospital argued it had relied on standard performance evaluations to make the RIF decision.

The court didn’t buy that argument. It said that if the supervisor’s evaluation was colored by prejudice and anger at Lee, then relying on that evaluation didn’t shield the hospital from liability. It said Lee’s lawsuit could proceed. (Lee v. Waukegan Hospital Corp., No. 10-C-2956, ND IL, 2011)

Note: The RIF decision might have held up if it had been based on prior performance reviews.

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