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Remind bosses: No comments on FMLA use

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in FMLA Guidelines,Human Resources

Some managers and supervisors just can’t seem to resist offering “helpful” career advice to subordinates. That’s especially true for workers they may see as less devoted to their work than old-school employees.

But a remark concerning absences covered by the FMLA may well be viewed as interference with a protected right, not good career advice. And that could spur a needless lawsuit should the employee end up losing her job for some unrelated economic reason.

Remind supervisors never to comment on FMLA absences.

Recent case: Tameka worked as a lawyer for a major New York law firm. She went out on FMLA leave during the height of the financial crisis when the firm was starting to struggle. When she returned, she claimed a law firm partner told her that she spent too much time out of the office, to the detriment of her skills development and client relationships. Perhaps unsurprisingly, she took this as snide criticism at her protected leave.

Then the layoffs began as revenues and billable hours plunged. Tameka was one of the attorneys cut during a wave of terminations.

She sued, alleging she had been targeted because she used FMLA leave.

She pointed to the partner’s negative comments. Fortunately for the firm, it had plenty of cold, hard economic data to support its layoff decisions. The court said one isolated comment didn’t trump that economic reality. (Simmons v. Akin Gump Strauss Hauer & Feld, No. 11-4480, 2nd Cir., 2013)

Final note: Want to offer career advice? Consider bringing in outside ex­­perts. Comments about spending more time building professional skills and client relationships sound better coming from a consultant than a supervisor.

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