Ensure FMLA leave doesn’t affect evaluations

When employees lose their jobs, they often look for a reason to sue. After all, they have little to lose.

One common tactic is to argue that a layoff was used as an excuse to get rid of “unproductive” employees, especially those who take advantage of their right to FMLA leave.

That’s why HR must develop a performance-appraisal system that documents that having taken FMLA leave wasn’t a factor when you evaluated employees’ work. That may require adjusting yearly goals, sales quotas and task-completion rates based on the time lost to FMLA leave.

The objective is to create a clear paper trail showing that you took care to make sure no one considered FMLA leave as a negative perform­ance factor.

It helps to work with the employee at evaluation time so you can jointly arrive at a fair evaluation that doesn’t penalize the employee for taking leave.

Recent case: Thomas Palmer worked for Harvey Gerstman Asso­ciates. When he underwent quad­ruple bypass surgery, he was out on FMLA leave for about two months. He returned with no restrictions except a temporary ban on more than six hours of work per day.

At evaluation time, Palmer’s supervisor wanted to use a recent audit of a store Palmer had managed as a negative factor. When Palmer pointed out that the audit unfairly covered events that happened when he was off work, his supervisor reconsidered. The audit was not used. Still, Palmer scored a 3.0 for the year.

Palmer lost his job in a layoff based on his score and a co-worker’s score of 4.0. He sued, alleging retaliation.

But the court tossed out the case. It reasoned that the company hadn’t used FMLA leave as a negative factor at all. (Palmer v. Harvey Gerstman Associates, No. 1:09-CV-01883, MD PA, 2011)