Labor & Employment Law

Failure to prorate performance goals to account for leave usage violates FMLA

Source: The FMLA Blog - Copyright © 2008. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

In Wojan v. Alcon Laboratories, Inc., No. 07-11544, 2008 U.S. Dist. LEXIS 69576 (E.D. Mich. Sept. 15, 2008), the employee took 12 weeks of FMLA leave from her medical sales position incident to the birth of a child. Because she took 12 weeks of FMLA leave, she did not meet her sales goals for the year. The company did not adjust her sales quota to account for her leave. Under company policy, sales goals are not adjusted for any employee for any reason, including FMLA leave. Alcon placed Wojan on a performance improvement plan because she did not meet her sales goals. She was eventually terminated. Prior to this incident, Wojan had consistently achieved high performance ratings.

In denying the employer summary judgment, the court found that Alcon used Wojan's FMLA leave as a negative factor in her evaluation. The court opined that Alcon's policy is "in direct contravention of FMLA provisions which prohibit the taking of FMLA leave as a negative factor in employment actions." The court reasoned that Alcon may have interfered with Wojan's FMLA rights by adversely evaluating her, in part, based on time she was absent on FMLA leave. That adverse evaluation led to her placement on a PIP, which led to her termination.

Mr. Bolsand Comment: The decision appears problematic. While the FMLA prohibits an employer from using FMLA leave as a negative factor against an employee, it also provides that an employee has no greater right to employment benefits for having exercised FMLA rights. The court's decision, in my opinion, provides greater employment rights to employees who have exercised FMLA rights than if they had not taken FMLA leave. Like it or not, the employer's policy does not recognize the use of leave of any kind as an exception to the requirement that the employee meet their annual sales quota. The court's decision effectively carves out an exception to that general rule that benefits employee's who have used FMLA leave over those who used another form of leave, or no leave at all.

This is not a case where the employee was denied a perfect attendance bonus because of their use of FMLA leave. The current DOL regulations (29 CFR 825.215) distinguish bonuses based on meeting performance goals from those based on the absence of certain events, such as safety and perfect attendance bonuses. The distinction is predicted on the DOL's view that performance goals require activity on the part of the employee independent of FMLA leave, whereas the latter did not require any effort on the part of the employee. Because achieving perfect attendance or no accidents required no effort on the part of the employee, the DOL believed that the denial of the bonus was more directly tied to the use of FMLA leave. Wojan clearly involved performance by the employee to meet the annual sales quota.

It should be noted that the DOL has proposed to do away with the current distinction as confusing and illogical. The DOL proposal questions its own previous assumption that achieving perfect attendance or no accidents requires no effort on the part of the employee.

Full post as published by New York Public Personnel Law on September 30, 2008 (boomark / email).