Addressing employee issues can protect you from FMLA lawsuits

by on March 17, 2009 · 0 Comment POSTED IN: HR Info Center

Address performance problems before they become an FMLA compliance issue

I thought you were required to give me my old job back when I returned from FMLA leave,” said senior employee Mark Mays.

“Your old job doesn’t exist anymore,” said Supervisor Dave Cowens. “We’re offering you a new one with fewer responsibilities.”

“I keep my salary, though, right?” asked Mark.

“The pay fits the reduced role,” said Dave. “You’ll do 20% less, so that’s what we’ll pay you.”

“The day I return from FMLA leave, you tell me I’m taking a $15,000 pay cut?” asked Mark.


“You’ve been complaining about the workload for months” said Dave. “We’ve reorganized to improve the department’s performance, and we’ve taken some things off your plate. But you can’t expect the same money while doing less.”

“I didn’t ask for a reduced role,” said Mark. “I complain, yes, but everyone does. When did you decide to reorganize the department, anyway? When I took leave?”

“We started thinking about it a month before you left,” Dave said.

“You mean right at the time of my performance review?” asked Mark. “You gave me a 5% raise and gave me a good rating. If there were problems, why didn’t you say so?”

“Perhaps I wasn’t tough enough on you,” said Dave. “But you know that you’ve been extremely stressed out over the workload and weren’t getting the job done.”

Mark filed an FMLA lawsuit. The company asked for the case to be dismissed before trial. Did the company win?


No. The company failed to get a dismissal for the FMLA lawsuit and will face a trial. A jury will decide whether the company violated FMLA compliance standards by failing to restore the employee to his former position.

The court said the company failed to support its case with adequate documentation.
The court wondered:

  • Why did the supervisor give Mark a “good” rating and a 5% raise if there were questions about his ability to handle the workload?
  • How did a good performance review happen at the same time there was talk of reorganizing Mark’s department?

Addressing performance problems helps win FMLA lawsuits
The learning in this case is less about reorganizing departments than about performance reviews. The supervisor was too generous in a performance review. He didn’t document the worker’s difficulties and complaints with handling the workload. This precipitated an FMLA lawsuit.

This doesn’t mean you need to document every last complaint. But if there are persistent signs a worker can’t handle an aspect of the job, you need to take action: Document the problem and offer assistance.

Because as this case shows, the unexpected can happen, such as a worker’s sudden taking of FMLA leave or a need for a reorganization. Then any negative action against a worker can look like payback.

Cite: Heron v. American Heritage, No. 02-7209, E.D. Pa.

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