Can your employee’s recent absence influence his or her job performance? Possibly. What happens when it’s time to evaluate that employee’s performance? Since the absence may have impacted your operations, and may have impacted that employee’s job performance, wouldn’t it make sense to reference it? Shouldn’t you be factoring in everything when you are looking at an employee’s most recent performance? The short answer is, “NO”. You should not mention an employee’s recent leave in a performance review. In general, you shouldn’t factor it into decisions regarding Reductions in Force either — particularly if it was an FMLA, (or ADA or Workers’ Comp)
leave. You know I look for ways that we can learn from others’ mistakes. This time it’s Verizon, and they are — or will be–paying dearly for that mistake. Read on to learn how and why–and how you can avoid the same fate…
(image from iwillteachyoutoberich.com)
Ms. Suzette Walker, a 36-year Verizon employee was 56 years old when Verizon laid her off in 2015. Up until 2013 she had always received excellent performance reviews. What changed? She took 2.5 months of continuous leave under FMLA and then a reduced schedule leave (i.e. working half days) through September 2013. Her supervisor mentioned in her 2013 mid-year review that she “has missed time due to an injury” and then, for the first time in her career at Verizon she received a less than satisfactory review. In 2014, Ms. Walker’s supervisor transferred her to another position. The score used to evaluate her speed in completing high-bandwidth jobs showed that she significantly exceeded the district average. By year-end she had improved her score so much that she exceeded her team’s average. In her year-end review, however, her supervisor criticized her for delegating work to contractors, despite his expectations of people in her position to act as project managers and use contractors to get the work done.
A few months later, (March 2015 to be exact) Verizon told the supervisor and another manager to select one person to be let go as part of an RIF. You see where this is going right? Here are the specifics: Before deciding who to terminate, protocol dictated rating and ranking all the team members, which in turn requiring evaluating all team members’ performance over the last two years. That’s not what these managers did, however. Instead they spoke over the phone, orally agreed to terminate Ms. Walker, and then devised a rate and rank to justify the decision. Using this rate and rank, Ms. Walker and one other employee, who was 12 years younger than she, received the lowest scores. The younger employee received an unsatisfactory rating in 2013, but had not taken an FMLA leave. The younger employee was put on a performance improvement plan and therefore was given a chance to correct his issues, whereas Ms. Walker was not. Had she been afforded the same opportunity Ms. Walker apparently would have received a higher overall score.
Ms. Walker sued, alleging FMLA retaliation, discrimination under the ADA and ADEA (Age Discrimination in Employment Act). The jury (yes, this one actually went to trial) awarded Ms. Walker $454,000 in back pay, front pay and pain and suffering on the FMLA and ADEA claims, plus another $165,000 in interest and attorneys’ fees, for a nice cool total of $619.000. Verizon moved for a judgment notwithstanding the verdict, arguing that Ms. Walker did not prove that her FMLA leave or her age caused her termination. The court disagreed, specifically finding that her FMLA leave was treated as a negative factor in her evaluation. The court also found that “but for” her age she would not have been fired.
So there you have it. When an employee takes leave under FMLA (or for that matter the ADA or Workers’ Comp) it may pose some difficulties for you. Even so, you cannot make that a factor in evaluating his/her performance — or it can come back to bite you. If an employee is eligible for FMLA leave, the hardship on your company does not matter. (Contrast that with the ADA, where you can evaluate a request for leave and deny it if you can show that granting the leave would impose an undue hardship.)
As you can also see, nothing exists in a vacuum. Employers who retaliate or discriminate against an employee who has exercised rights under FMLA or ADA will often run afoul of other employment laws. Employers who arrive at adverse employment decisions by deviating from standard practices without justification will bring more trouble on themselves, as they did here. In this case, the facts also supported a claim that Verizon chose to terminate Ms. Walker because of her age. As I said in the beginning. Verizon is paying dearly for those mistakes– $619.000 to be exact. Learn from Verizon.
Regarding the different nuances of employee leave, if you missed the live presentation, you can now get the recording of my webinar, Navigating the Overlap in Employee Leave (FMLA, ADA and Workers’ Comp). (Click the title to get to the landing page.)
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