In the Trenches: Are you truly irreplaceable on the job?

In this edition of In the Trenches, pressure to work may have interfered with an employee's FMLA rights.

Connie Klutz broke her leg getting out of bed one morning. An ever-conscientious manager in Acme’s marketing department, Connie called her office on the way to the hospital, gritting her teeth in pain, to instruct her assistant, Helga Helper, on what needed to be done that day in her absence. It was not a good time to break a leg: Acme was scheduled to launch “The Flubulator,” a promising new product, at a trade show a mere six weeks away. The next day, still groggy from surgery to reset several bones, Connie called Bill Branding, Acme’s head of marketing, from her hospital bed to break the news: She was going to need several weeks of leave under the Family and Medical Leave Act (FMLA) to recuperate.

“OK, we’ll get by,” Bill said, trying to be supportive, but clearly miffed. “I suppose you can’t come in on crutches. Promise me you’re not going to go off the grid completely though. We can’t do this launch without you. I hope Helga’s got you on speed dial.” Connie assured Bill that she had no intention of leaving him in the lurch, and that Helga was more than capable of stepping up.

But Helga was less than capable of stepping up. She called Connie several time a day for guidance on dealing with routine matters, and when it came to weightier responsibilities, she simply wasn’t up to the task. Connie found herself Skyping with product managers to ensure the product brochures were accurate; wheeling and dealing with conference organizers for prime real estate in the expo hall (after a panicked call from Bill, who feared Acme would draw some dark corner); and overseeing final production of “The Flubulator” video, to be unveiled at Acme’s booth.

Connie even came into the office at one point to drop off the corrections for the brochures and to check in on how things were going in general. (Not well, apparently: Bill chewed Connie out during her brief visit over Helga’s inadequacies.) By the time her FMLA leave ended, Connie had put in about 20-25 hours of work from home, leg up on her couch.

Connie’s return to work did not go well. Still on crutches, she winced noticeably as she tried to race between the product management team and the graphic designers. And Bill, nothing if not image conscious, grew increasingly worried about how Connie would present herself at the expo booth. His hostility building, he finally told Connie that Helga would take her place at the trade show. Humiliated, Connie resigned, and filed an FMLA suit. She alleged that Acme interfered with her FMLA rights when it forced her to work while she was out on FMLA leave.

Will Connie's lawyer be eager to take her call?

A court is unlikely dismiss this lawsuit; at minimum, the question of whether Acme interfered with Connie’s rights would be for a jury to decide. It’s one thing to call an employee on leave a few times with work-related questions–occasional inquiries of that sort probably won’t amount to FMLA interference. However, Helga’s several calls a day to Connie exceeded the limit.

It would probably have been OK, too, if Bill had called to ask Connie whether she expected she’d be healed enough to travel to the trade show in a few weeks, or to check on her anticipated return-to-work date. Phone calls regarding medical certification and other administrative matters related to FMLA leave are to be expected–there would have been no harm there.

The bigger problem, of course, was the productive work that Connie performed. Requiring an employee to work while she is on FMLA leave is a no-no. It discourages the employee from using the leave to which she is legally entitled, and actually prevents her from doing so–at least for 20 to 25 hours, in this instance.

It’s tempting to say that Connie hadn’t been forced into anything, that she’s just a conscientious professional who felt compelled to make sure that things were running smoothly at an especially critical juncture. No doubt that’s true to some extent. But Bill encouraged (in fact, requested) that Connie act on that compulsion. That was the wrong thing to do.

Employees should be fully relieved of their duties when on FMLA leave, and it should be made expressly clear to them in writing that, as a matter of policy, they are not to perform any work while they are out. Also, Acme may need to give its front-line managers a refresher course in FMLA administration before the next employee breaks a leg.

Lisa Milam-Perez, J.D., labor and employment analyst, Wolters Kluwer Law and Business, (773) 866-3908

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