Can I consider FMLA time when evaluating candidates for promotion?

Our attendance reports show working time in green, excused time away, such as FMLA, as yellow, and sick and other unexcused time as red. When considering internal candidates, if someone has been on FMLA I can see that they have missed work, but still within the FMLA guidelines. I know I am not supposed to consider the yellow time (FMLA) but how can I not when I am hiring for a position that needs someone who can be here to work? Is considering the yellow time against the law? Is there a solution?

Posted  04-14-2010

Ann Kiernan replies:

Yes, considering the FMLA time is against the law. 29 CFR §825.220(c) says: “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” Managers (and human resources personnel) who retaliate against workers who have used FMLA or interfere with worker FMLA rights can be held personally liable. See, e.g. Spagnoli v. Brown & Brown Metro, Inc.

The only solution I can think of is resist the temptation to look at absence records when considering internal candidates. Good luck.


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About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.