Absences due to FMLA can count against calculations for performance bonus

Generally, time spent on FMLA leave can’t be counted against an employee when, for example, tallying absences under a no-fault attendance program. However, calculations to figure a production bonus don’t have to “forgive” work missed because of FMLA leave.

Recent case: Gregory worked for Moody’s Analytics as a solutions specialist on the company’s Stress Testing Team. He provided Moody’s sales team with guidance relating to stress testing for financial institutions. He earned an annual salary of $175,000, plus additional compensation under an incentive plan. That payment depended on his individual performance and the overall performance of the team.

The individual component was based on completing specific activities, providing unit credits. He could earn 100% of the bonus if he hit his individual units and the team met its annual sales target.

Gregory took 63 days of FMLA leave for colon cancer treatment. At the end of the year, his bonus was reduced by the number of days he was out.

He was fired after an investigation revealed he had improperly given himself credit for completing all his units when he had not.


Then Gregory sued, alleging that prorating his incentive bonus violated the FMLA.

The court disagreed. It said that production bonuses may be reduced by the amount of lost production caused by FMLA leave. Because he didn’t contribute to the team portion of the plan during his absence, that time could be deducted. (Clemens v. Moody’s, SD NY, 2018)