We have a service repair technician who is required to repair 12 instruments a year, but due to a 3-month Family and Medical Leave Act absence was only able to repair 6. May we view him as an unsatisfactory performer and reduce his merit raise?
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In general, you want to reduce the performance goal to take into account the time that the employee was absent on leave. In your case, on the surface it sounds like somebody who missed 3 months out of the year should have been able to do 9 repairs. If that is so, then doing only 6 would be unsatisfactory and denying a raise would seem appropriate. This analysis assumes that the repairs are regularly scheduled throughout the year and that each one requires approximately the same amount of time. If this is not the case, performance goals may need to be determined some other way.
Also, be careful if the employee had a medical condition that impacted his or her performance during the time he or she was at work. If so, it may be appropriate to reduce the goals further. Typically, an employee who is out on FMLA leave has a serious medical condition. If a plaintiff’s lawyer can start the case by saying, “My client is sick and was fired because he was sick,” the burden on the employer to show that it acted fairly is very high. It is an emotional matter with the jury; jurors will feel sorry for the plaintiff and offended at any hint of unfair treatment. You want to err on the conservative side in giving people allowance for the FMLA leave by reducing the goals in an amount that a jury won’t be able to seriously question.
— Thomas N. Makris
Thomas N. Makris is counsel at the Sacramento office of law firm Pillsbury Winthrop Shaw Pittman.