Bonus denied because of illness

[jiyuztex]

What is the name of your state? New Hampshire

My mother recently had surgery. Due to various complications, she had to take five weeks off while recovering. She informed here employer that she would have to take the time off, and it seemed there would be no problem since prior to the surgery she had 10 weeks of sick time saved.
When she returned just after Christmas, she discovered that she had been singled out and had been denied a Christmas bonus. The agency told her that because she was not on active payroll and was on an FMLA leave.
Is it legal to punish her, simply because she got sick and used sick days that the agency owed her?

 

[cbg]

No, but for a different reason than you think.

It would be legal for them to deny her the bonus because she was not actively at work - except for the fact that she was on FMLA leave. FMLA is supposed to be totally transparent with regards to such things; therefore, she cannot be denied a bonus that she would have been eligible for if she were not on FMLA. She cannot IN ANY WAY be treated differently because of her FMLA leave.

If she were on medical or any other kind of leave but that leave was not covered under FMLA, then it would be legal for them to withhold the bonus.

 

[I AM ALWAYS LIABLE]

No, but for a different reason than you think.

It would be legal for them to deny her the bonus because she was not actively at work - except for the fact that she was on FMLA leave. FMLA is supposed to be totally transparent with regards to such things; therefore, she cannot be denied a bonus that she would have been eligible for if she were not on FMLA. She cannot IN ANY WAY be treated differently because of her FMLA leave.

If she were on medical or any other kind of leave but that leave was not covered under FMLA, then it would be legal for them to withhold the bonus.

My response:

Now, wait just a minute, CBG. A Christmas bonus is a "gift". A gift is not controlled by any law or other legal fiat (in the employment setting, that is). It doesn't matter what the circumstances are - - a gift of a bonus is NOT wages, and as an employer, I have the absolute right to give something to somebody, or not.

What part of ANY law says that I MUST give someone a gift, even if I give someone else a gift?

IAAL

 

[HomeGuru]

What part of ANY law says that I MUST give someone a gift, even if I give someone else a gift?

IAAL

**A: even Santa Claus knows that there is no such law.

 

[jiyuztex]

What part of ANY law says that I MUST give someone a gift, even if I give someone else a gift?

IAAL

**A: even Santa Claus knows that there is no such law.

Correct me if I am wrong, but an employer would be in trouble if he announced, "All white employees will receive a $1000 bonus."

So the question isn't whether a law can compel an employer to give a gift, it is whether my analogy holds when we apply it to the FMLA.

 

[cbg]

But the Family Medical Leave Act says that you cannot be denied a benefit that you would have gotten, because of the FMLA leave. It's not whether or not the employer HAS to give you a bonus - obviously the employer does not have to give anyone a bonus. But he cannot, under FMLA, deny someone a bonus or a benefit for no reason other than that they took FMLA leave.

 

[Beth3]

Yes, of course you have the right to decide who to give a gift to and who not too, IAAL. But the FMLA does make it clear that you cannot refuse to give someone a gift that the employee would otherwise receive from the employer because she took FMLA.

 

[I AM ALWAYS LIABLE]

Correct me if I am wrong, but an employer would be in trouble if he announced, "All white employees will receive a $1000 bonus."

MY RESPONSE: Okay, consider yourself "corrected". A "gift" has NOTHING to do with employment. You may think it does, but it doesn't. It just means that someone is GIVING you something. And, if I want to give MY gift to only PURPLE colored people, then that's MY right. Remember, it's a GIFT, and for all intents and purposes, I don't have to give anyone a gift. But, if I do, I have the right to pick and choose to whomever I want to "give" it to.



So the question isn't whether a law can compel an employer to give a gift, it is whether my analogy holds when we apply it to the FMLA.

MY RESPONSE: Don't confuse the law with someone's "benevolence". Giving a gift cannot be compelled.

IAAL

 

[cbg]

Cut and pasted directly from the DOL's web site:

Q: Does an employer have to pay bonuses to employees who have been on FMLA leave?

The FMLA requires that employees be restored to the same or an equivalent position. If an employee was eligible for a bonus before taking FMLA leave, the employee would be eligible for the bonus upon returning to work. The FMLA leave may not be counted against the employee. For example, if an employer offers a perfect attendance bonus, and the employee has not missed any time prior to taking FMLA leave, the employee would still be eligible for the bonus upon returning from FMLA leave.

On the other hand, FMLA does not require that employees on FMLA leave be allowed to accrue benefits or seniority. For example, an employee on FMLA leave might not have sufficient sales to qualify for a bonus. The employer is not required to make any special accommodation for this employee because of FMLA. The employer must, of course, treat an employee who has used FMLA leave at least as well as other employees on paid and unpaid leave (as appropriate) are treated.

End quote

So unless the bonus was tied to productivity, and she did not meet her productivity requirement, she would still be owed the bonus.

 

[I AM ALWAYS LIABLE]

Yes, of course you have the right to decide who to give a gift to and who not too, IAAL. But the FMLA does make it clear that you cannot refuse to give someone a gift that the employee would otherwise receive from the employer because she took FMLA.

My response:

Then I must be from Missouri. "Show Me".

If your theory is correct, then the "gift" is no longer a "gift" - - it's "compelled" and I don't believe the law says that I am "compelled" to give a gift.

So, show me.

IAAL

P.S. We were writing at the same time. The key word is "eligible". As an employer, I can determine who is, and who is not, "eligible". I'll just keep it a secret as to why - - which would "work around" the FMLA.

 

[jiyuztex]

Thank you!

So clearly my mother's first course of action is to remind the HR director that the agency's policy of denying a bonus to anyone out on FMLA leave is a fairly clear violation of the FMLA.

What recourse does she have when the HR director tells her that she sees the law differently?

 

[I AM ALWAYS LIABLE]

My further response:

Christmas bonuses in MY office are NOT tied to productivity. They are "tied" to whether, and how much, I like you - - whether you be an employee secretary, paralegal or even one of my partners.

I did NOT give "equal" bonus gifts. I gave my secretary, Gretchen, a far larger bonus than I gave my ace paralegal this year.

In fact, if our writer's employer gave his "gifts" for just the sake of "giving", and not because they were "tied" to anything in the employment setting, then he is well within his rights to give, or not give.

Remember, this is a Christmas Bonus we're talking about - - not a "productivity" bonus.

IAAL

 

[JETX]

I agree with IAAL on this one.....

The citation provided by cbg only applies "If an employee was eligible for a bonus before taking FMLA leave". There is nothing in that citation (or any other that I could find) that an employer was required to give a 'voluntary bonus' to somone ON FMLA at the time of the 'gift'.

As for the other post by the writer:
"Correct me if I am wrong, but an employer would be in trouble if he announced, "All white employees will receive a $1000 bonus."
*** You are correct in that the employers actions would be wrong (and probably actionable), but not for anything related to this post. That action would clearly be discrimination against a 'protected' minority, which does NOT apply in this case.

 

[JETX]

"So clearly my mother's first course of action is to remind the HR director that the agency's policy of denying a bonus to anyone out on FMLA leave is a fairly clear violation of the FMLA."
*** Of course she can try to 'argue' that point (incorrectly, in my opinion).

"What recourse does she have when the HR director tells her that she sees the law differently?"
*** Since she has no legal recourse (again, my opinion), she can decide to stay (if they let her) or to quit and find another job.

 

[cbg]

She can also contact the Department of Labor and get their opinion on the idea.