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Apr 5, 2016

By Eric B. Meyer

A few years ago, I blogged here about the importance of communicating with employees on the Family and Medical Leave Act to stay abreast of their status and eventual return-to-work.

But, even before employees go on FMLA, both clear communication and workplace policies becomes paramount. Consider this recent example involving a pregnant salesperson.

In Isom v. JDA Software, Inc., the plaintiff sought to ensure that she would be compensated for deals in the pipeline, even if out on maternity leave, to determine whether she should exercise her rights under the FMLA.

A failure to communicate

Well, let’s see how that went for her:

  • In December 2010, she emailed HR to ask about whether she would get credit for deals in her pipeline. She got no immediate response.
  • In January 2011, the plaintiff informed her immediate supervisor that she was pregnant, but got no direction from him on commissions either.
  • In March 2011, the plaintiff contacted both HR and her immediate supervisor again about her sales and commissions. At this point, she was openly considering returning from FMLA early. Still, no guidance.
  • By the end of May 2011, the plaintiff had received no information on how her accounts would be managed while she was out. So, she contacted the company’s general counsel to express her concerns. The general counsel told the plaintiff that “management and/or HR should be getting back to [her] to give [her] more clarity.”
  • In June 2011, the plaintiff took FMLA to give birth to twins. During her FMLA leave, the defendant told the plaintiff, for the first time, about a “general policy” where a salesperson on a leave of absence is not eligible for commission on that deal. A few weeks after that, the plaintiff’s biggest account was given to another co-worker.

FMLA violation? You bet!

Actually, the real question isn’t whether the company violated the FMLA — it did. Rather, the question is whether the plaintiff should collect liquidated damages (i.e., double her wage/benefits loss) too?

Yessiree, said the court:

In sum, Plaintiff communicated to Defendant that the exercise of her rights under the FMLA was dependent upon information she received for two specific questions:

  1. The possible transfer of certain accounts; and,
  2. Her eligibility for commissions.

Defendant maintained no written policy on either issue, and failed to promulgate a written policy in a timely manner when Plaintiff sought clarification seven months in advance of her due date. Defendant then failed to concretely answer Plaintiff’s repeated inquiries on the aforementioned issues, and forced Plaintiff to exercise her statutory rights without sufficient knowledge as to the consequences that it would entail. Finally, Defendant belatedly disseminated a policy to Plaintiff that excised certain opportunities from Plaintiff’s portfolio based on internal metrics that provided no opportunity for her to terminate her FMLA leave and return to work early, as she informed Defendant she would.

Defendant’s policy essentially forced Plaintiff to either forego her statutory rights or guess as to the professional consequences, an untenable position that is “willfully indifferent to the FMLA” and not “in good faith.”

Employer takeaway

Go back up to the section above from the court’s opinion and do the opposite of everything the defendant did.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

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