An employee’s performance is measured by the amount of work done. Fair enough. The employee takes Family and Medical Leave Act (FMLA) leave. Must the metrics of performance measurement be adjusted as a result? Earlier this year, by a 2-to-1 vote, a federal appeals court gave an emphatic “yes” in response.
High-Pressure Job
Marianne Wayland worked for OSF Healthcare System, which was on an acquisition binge gobbling up other healthcare providers. Her job was to integrate the new employees into OSF. It was a big task with high expectations and the responsibility of supervising 30 employees.
These events intersected with her need to take FMLA leave, both continuous (one month) and intermittent (one to two days per week). The leave resulted in her taking leave for 20% of her full-time work period, but the company laid down the law: You have “no choice” but to keep pace with our accelerated acquisition schedule.
The employees in Wayland’s department felt the heat of the mounting stress, complaining to Human Resources (HR) about the workload and her management style. She was put on a performance improvement plan but wasn’t told her job was in jeopardy. In fact, she was actually meeting most of OSF’s expectations, only falling somewhat short. Ultimately, she was fired two months after she stopped taking FMLA leave and a month after the start of the performance plan.
Merit to Her FMLA Lawsuit?
Wayland sued OSF for violating her rights under the FMLA. The company argued she received all the FMLA leave she was entitled to, she failed to meet performance expectations, and she therefore had no viable claim.
The trial court agreed and tossed the lawsuit. But the appeals court said not so fast. It sent the case back for a jury trial and laid down its version of the law:
A jury reasonably could find that when an employee is available for work only 80% of a full-time schedule, and the reason for the 20% shortfall is because she has taken protected leave, the employer must adjust expectations to comply with the Act. . . . This evidence of unadjusted performance standards, despite her approved absence for 20% of full-time work, would allow a jury to conclude that OSF both interfered with her leave-taking and retaliated against her by firing her. . . . [OSF] deprived her of the benefits of that leave by insisting on 100% of the workload to be performed in only 80% of the time.
And believe me, a jury will agree 110%! Wayland v. OSF Healthcare, (7th Cir., 2024).
Bottom Line
Always ask yourself: What’s fair in the circumstances? This is exactly the question a jury will ask itself. It will then dive back into deciding whether there was an FMLA violation. So engage in prospective hindsight by asking the question of yourself before taking an adverse employment action!
Michael P. Maslanka is a professor at the UNT-Dallas College of Law. You can reach him at michael.maslanka@unt-dallas.edu.