Don’t factor in FMLA when making RIF list

Many employers are discovering they have to cut staff to survive. It’s tempting to eliminate those positions where the least work is being done. After all, the employees doing the least work should be the least missed.

But before you decide to RIF someone, remember that you cannot consider FMLA leave in the calculation. For example, if an employee is taking intermittent FMLA leave once a week (and presumably getting 20% less work completed), you can’t use that lower productivity to justify laying her off.

Here’s why: The law forbids you to consider taking FMLA leave as a negative factor. Doing so can constitute both interference with and retaliation for taking FMLA leave. And that means a lawsuit is likely.

Recent case: Alice Compton worked for AT&T as an assembler on a team of four. Compton has diabetes and had been approved for intermittent FMLA leave, which she frequently took on Mondays and Fridays, much to her supervisor’s chagrin.

Then AT&T executives asked the supervisor for input on how to cut costs. The supervisor looked at productivity and concluded that the work could get done without the team Compton served on. While talking it over with the brass, the supervisor mentioned that Compton took intermittent leave, and therefore was reducing the effectiveness of the team.

When Compton was laid off, she sued, alleging FMLA retaliation and interference.

The court said she should get a jury trial because there was evidence the company used her FMLA leave status as part of the decision-making process. (Compton v. AT&T, No. 1:07-cv-984, SD OH, 2009)

Final note: You must not consider FMLA leave as a factor in most employment decisions. You’re inviting a lawsuit if you do.