Meeting performance and FMLA

GLC · June 2004

We have an employee (exempt) who has had performance problems for years. It's been addressed, and she has been closed to termination. She is currently on intermittent FMLA for diabetes and migraine headaches. Her doctor completed all the paperwork. The problem is this. The program that this ee works in requires them to meet a 1000 per hour productivity limit. This takes into account all their vacation time and holidays and 5 sick days. Since she has periods that she does not work, she never meets the 1000 hrs. 99% of the other ee in the program do, but they are not on FMLA either. I feel that ee think that FMLA prevents them from being fired, even if their performance is sub-par. Correct me if I'm wrong. Doesn't FMLA protect the ee in the sense that we cannot fire them because they took off for FMLA, but it does not state an employee does not have to meet productivity, despite FMLA. Can we ask her to work more time to make up for the FMLA days or hours she takes. Are we just to expect that this ee will not ever meet the 1000 hr. expectation because of FMLA?

Pork · June 2004

[font size="1" color="#FF0000"]LAST EDITED ON 06-22-04 AT 04:25PM (CST)[/font][br][br]GLC: Before we can give you some solid advise you need to help clarify a glaring issue, (EXEMPT employee on intermittent FMLA leave). If this was our exempt ee, we would be paying her salary and programming her scheduled hours off and not worring about meeting a 1000 hour production schedule. Exempts are 25 hour a day and 8 days a week persons, personal time off to take care of personal medical needs under the FMLA provisions is a non issue with us. If our ee is short on her production in a five day work period, so what the exempt can be required to meet production in the other hours available. My biggest concern would be, do we have a valid understanding of her physicians wishes, treatment plan, and is our working hours oked by the physician in order for her to make production?

PORK

GLC · June 2004

This exempt ee is still paid a salary, but we have a bonafide sick leave policy so our ee have to track any time away from the job on a timesheet due to illness. The doctor just stated on the FMLA form that her condition was episodic and is lifelong. This is an ee who will abuse the system if she can because she knows we are always on her about her productivity hours and she will look for anyway out to save her job. She knows she is on the border of being fired. This is a counseling center and the employees have to see so many clients per year, but she never makes her goal.

Pork · June 2004

GLC: FMLA does not appear to be the issue. Performance sustainment at an acceptable level for a given amount of income/PAY/SALARY. Don't worry about the hours. Have her boss/es discuss her performance and the level to which she is achieving an acceptable level of performance and let her know what the expected level of income is available for reaching a lesser level of client participation. 800 hours of one on one time with our clients and completion of all necessary paper work is worth XXX amount of $ollars. 600 hours of one on one time with our clients and the completion of all necessary paper work is woth YYY amount of $ollars. This way the company is protecting against claims of retaliation for FMLA usage and the company is getting the equivalent satisfactory level of pay in concert with the satisfactory work being performed for the benefit of the entire team and purpose. Once faced with the ball in her hands you may see a difference. To be fair, XXX dollars divided by the 1000 majic number of hours gives you the expected value of one hour. Multiply that amount by the average number of hours she has spent over the last 6 months, that should then become the gauge used to determine a scale of value for 700 hour, 800, or 900 hours of one on one contact with the client. Once given this information in a written format you have placed her income achievement based on her behavior. It then is her choice to keep the higher income. I would not allow her to go back and forth on a weekly basis. I would set this scale in place until she has completed her FMLA and is released by her physician to regular duty. If she can master the 1000 hour goal and continue the FMLA, then you should be prepared to pay, accordingly for the company will have achieved the ultimate win-win situation for all!

We have done this for a truck driver, who was paid by the loads in an assumed 50 hour work week, with an expected base plus additional value for all loads over the base. We lowered the value of his work week due to inability to get to the 50 hour base. He continued the FMLA for treatment and met the full load goal, but missed out on the bonus loads! He was happy and we were happy and his buddies loved getting his extra loads and the bonus it paid. He is now through with the cancer treatments and is back to full duty and collecting his full compliment of loads.

PORK

Crout · June 2004

I agree with Pork. You must also understand that no matter what you do this person will be able to get an attorney to sue your company. So don't let that fear be your sole guiding light. Was she making her goal before the FMLA leave? If not, was the issue addressed then? If she's been a consistant under-performer, and her supervision never addressed the issue, it will look like it's only a problem now because of the FMLA leave, which will make you vulnerable. In that case you might think about some alternatives to firing her. What about a transfer to a different job that has no quota? You could also adjust her salary to compensate for the lower productivity.

Carey · June 2004

I am going to disagree with some of the answers that have been posted. If she is on a certified FMLA intermittent leave, then I would take into account the amount of leave she's taken in a given period (maybe monthly) and prorate her productivity goal accordingly. How can you expect a person who can't be at work for a certified FMLA reason (whether suspect or not) to meet the same goals as those who are there 40 or more hours per week? If she's abusing FMLA, then she will reach the 12 weeks and then you can do what you want. It doesn't sound reasonable to discipline or terminate someone for productivity that is based on amount of time worked when they have an FMLA protected reason to be away from the office. It will look like retaliation for taking FMLA.

I understand the frustration with the situation - have been there several times myself. But you have to be careful with FMLA. I would also involve my legal department before disciplining or terming someone who has or is taking FMLA leave.

marc · June 2004

When I first read this post, I must say that the pro-rated approach suggested by Carey or the pay for performance suggested by Pork seemed like a no-brainer to me, and I would think that any under-performance issues would still surface and you could deal with the marginal EE appropriately. The exempt status was throwing me for a bit when we talked in terms of units of production - I did not understand that this EE was a professional exempt and the units of production were counseling hours.

In our shop, a counselor sees a client through at least 8 sessions - no substitutes or changes unless the client requests a different therapist. Sessions are cancelled on occasion at the behest of both clients and therapist, but a therapist cancellation is a big deal and there had better be a good reason. It is hard to "make up" these types of sessions because of the difficulty of scheduling sessions. You cannot get in a counseling session by yourself, although in this case, perhaps the therapist needs to do some self evaluation.

FML is not supposed to "protect" a bad EE, but I am having trouble understanding how to get around the FML protection when the work could not get done because of the medical condition.

The ER has the right and, in the case of counseling sessions, perhaps the duty, to protect the clients. I am back to the pro-rated approach to measuring this EEs effectiveness. Hold her accountable.

Pork · June 2004

One should not fear FMLA issues when there is a performance issue. The scale for a 1000 hour counselling week for X amount of money is a no brainer. Give the employer only 800 counselling hours of one-on-one contact and other hours on FMLA has a value that is 800 times the same rate of pay for 1 hour.

PORK

Don D · June 2004

I hear an echo. This same question was posed and answered over on the FMLA board.

Pork · June 2004

Don how in the world do you have time to go over to the FMLA board, the wage and hour board, and this board? I barely have time to come to this board as often as I do! My "pig" hat is off to you (you know the razorback pig hat)! Is there 6 000 + plus postings there also or do our posting accum regardless of the number of postings anywhere?

May all of us have a Blessed and happy but rainy day!

PORK

Meeting performance and FMLA

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