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The case of the missing office manager

In this edition of In the Trenches, Acme learns the downside of expecting people to be on the job.

Thinking green was the key element of the recently-adopted and politically correct marketing hype that Acme Chemical Reclamation and Refining used in its efforts to capture greater market share. That 2007 seemed like the time to act was the motivation for Acme’s ramping up its operations. The growth spurt was one reason that Anne Thrackspore, hired in 1999, was promoted to the position of office manager at one of Acme’s operating divisions.

Considering its euphoric expectations, that move might not have been the smartest one Acme ever made because Anne was apparently just plain unlucky. First, she used FMLA leave in 2004 to treat carpal tunnel syndrome. Then, Anne needed additional FMLA leave in 2006 for abdominal surgery. Along the line, Anne also took leaves for a death in the family and for two other less-severe illnesses. In a recent performance evaluation, Kent Golding, the division manager, took note of Anne’s attendance “problem,” but added a note to the dossier indicating that the situation was improving recently.

In late 2009, however, Acme had to face its struggle with the economic malaise smothering the country. A rather deflated management imposed severe budgetary cutbacks that resulted in nearly 100 employees choosing to leave voluntarily, motivated by either the leisure of early retirement or the lump-sum cash buyout. But another 30 people needed to be terminated involuntarily.

Acme hired a staffing consultant to identify 40 employees least suitable for retention or promotion. In a parallel move, Acme’s HR department made its own evaluation that was based on employee performance reviews and an assessment of each employee’s skills, education and tenure with the company. These lists were reconciled into a single, 30-person hit list.

Of the three office managers in the division, Anne received the lowest composite score. Kent terminated Anne at the end of the workday the list was released. On the morning of the termination, coincidently, Anne had submitted a request for additional FMLA leave.

A few weeks later, Anne filed a complaint with the Department of Labor that claimed the termination was in violation of the FMLA provisions. The DOL bureaucracy needed more than a year to agree that Acme violated the FLMA. When Acme refused to accept that verdict, Anne filed suit in a federal court.

How could this situation have been avoided? Should a company consider indications of employee health in its promotion and retention decisions? Is the need to rely on a consultant hit man an indication of a weak HR department? Would it be better to raise the ante on buyout amounts when not enough people leave during the first round?

An attorney says:

An employer should never consider employee “health” in its hiring, promotion or termination decisions. At the hiring stage, the only relevant inquiry is the employee’s ability to perform the essential functions of the job with or without reasonable accommodation.

In the context of a workforce reduction, an employer can legitimately consider an employee’s attendance. However, an employee can’t be penalized for using FMLA leave. Whether Anne succeeds in her suit will depend on how her non-FMLA absences and job performance compared with other employees who weren’t part of the workforce reduction.

On the other hand, Anne isn’t going to get much mileage out of any claim that she was selected for the workforce reduction because she submitted a request for additional FMLA leave the morning she was terminated. Acme had to have made its decision to include Anne in the reduction before she submitted her request for FMLA leave. This is like the employee who is terminated and then tells her supervisor that she has been sexually harassed. Courts have been uniformly unimpressed with retaliation claims in this context.

Using a consultant to help “rightsize” a company doesn’t signal a weak human resources department. Often, outside expertise in the form of consultants or lawyers can help focus an HR department on the best ways to achieve a smaller workforce while minimizing the legal exposure. In the last analysis, however, only the employer’s own supervisors and human resource personnel can identify the best employees to retain in a weakened economy.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A plant engineer says:

People get hired and people get fired. To my knowledge, there’s not a lifetime warranty on anyone’s job. A company must have the right to let go anyone in its employ who no longer is seen as a benefit to the company. I believe this situation could have been avoided if Anne realized this.

It seems that the last request Anne made for FMLA leave had nothing to do with the decision to let her go. The list was already made. I believe that any company should use the data available, including attendance, to determine if an employee should be promoted or let go. If employees aren’t on the job, how can they contribute to company goals?

I believe Acme did the right thing here by having a “second opinion” on the employees that would be terminated. It could have been left to HR only, but Acme went through the expense and trouble to get a second opinion on such a serious matter. I don’t see this as a weakness on HR’s part, but rather Acme going above the call of duty to ensure it made the best decision in this matter.

Finally, I don’t believe it best to raise the ante on buyout amounts. This only will lead to ill will from the people who took the first offer and make them wish they had held out for the second “higher” offer. If the company had enough money to buy out everyone, it would indicate that business was good and they might need everyone to service their customers.

Jeffrey L. Strasser
Bacova Guild
(540) 863-2656
Strasser.Jeff@bacova.com

An academician says:

FMLA allows an employee to take 12 weeks of unpaid leave, with some restrictions, for family or personal medical problems. An employee could be terminated while on leave, however (a big however), the termination can’t be related to the FMLA leave. For example, suppose while on leave it was discovered that an employee is defrauding the company. Such employees can be terminated because they would have been terminated if the discovery was made while the employee was on active duty.

The same rules hold for downsizing. If the employee was downsized while on leave, and would have been downsized anyway, that doesn’t violate the FMLA rules. But, the burden of proof is on the employer to demonstrate that the termination isn’t related to the FMLA leave. I can only guess that the DOL thought that a factor in Anne’s termination was her poor attendance because of her FMLA leaves. Assuming this is true, Acme needs to revise its criteria for deciding who goes.

Is relying on a consultant indicative of a weak HR department? No, it’s probably more indicative of a lean HR department. Downsizing usually involves work restructuring, sometimes new job descriptions, changes in pay, as well as deciding who stays and who goes. It’s usually lot of work, and extra help is often needed. Particularly help from people who have done this before.

Do you increase the second round ante for buyouts if an insufficient number of people leave on the first round? Usually not, because it would cause hard feelings among the people who took the first-round buyout. You could extend the deadline date, or maybe add something that the first round people would also receive, but don’t raise the offer just for the second round.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

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