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Monday, February 11, 2008

Fair Leave?

I am currently on Short Term Disability for birth of my baby for 6 weeks. I have arranged to take 6 more weeks after that--FMLA. The company and department annual review period and increases fall during the time frame I will be out. My manager e-mailed me that my review and increase will occur after I return to work and will not be retroactive.

I was wondering if this is typical and/or legal?

A girlfriend of mine went through the same thing (different department) - annual reviews during her leave, and she did not have to wait till she returned and hers was retroactive. Is it legal for them to selectively apply this rule?

Thanks in advance for your insight.


Illegal? My non-lawerly answer is no, why would it be? It's not illegal to treat people differently. It's only illegal to treat people differently because of some sort of protected class. Now, granted, pregnancy has all sorts of protections, but since you both had babies, you can't argue that you were discriminated against because of your pregnancy.

You can argue that your HR department is ineffective and just waiting for something to blow up in their faces. We HR types sometimes do that.

There needs to be a set policy--increases/reviews given during leaves of absence--yes or no. Then it needs to apply to everyone. (And quite frankly, as someone who has run salary increase/reviews for an entire Fortune 500 company, the last thing I would want is the ability for individual managers to decide if someone's raise is retro-active or not.)

You can certainly complain, but I recommend not doing it in a complaining tone of voice. Speak to your manager and say, "I'm a little confused. When my friend Linda, in accounting, had her baby, her raise was put into effect immediately. Has there been a change in policy since then?"

The answer may well be, yes, there has been a change in policy. Or it could be that her manager violated policy, or that your manager is violating policy, or that accounting has a different policy than marketing. I don't know. But, don't get accusatory.

Yes, yes, yes, we want managers to have flexibility. But, not on everything. This should be straight forward. But it's not, at your company any way. Like I said, I doubt it's illegal. As for it being typical, I've never yet worked for a company that gave increases while people were out. You had to return to get your increase activated. If you are on unpaid FMLA leave, it won't matter anyway. If you are getting paid, then thank your lucky stars.

But, do ask, but ask nicely. And don't pitch a fit, either way. And remember, while your salary won't go up, you did just give birth to a beautiful new tax deduction. That's got to help somewhere. (I won't mention you also gave birth to a huge daycare expense--because I'll assume that your husband is staying home with the baby and he didn't work before anyway, so it's just a tax deduction, no extra expenses--because your mother gave you all your old cloth diapers that she saved for just such an occasion.)

3 comments:

Anonymous said...

In my experience you're better off not having your review while you're not actually working. It can be a way for "them" to short change you and/or otherwise negatively anticipate you not coming back after the baby. It's not fair, but it does happen, and depending on the size of your employer, there may not be anything you can do about it. True story: I was fired during maternity leave (3 months after a stellar review and big raise) because I wasn't "fulfilling my duties". Ummm, yeah, we talked about this, remember, me taking vacation and sick leave for a few weeks because I just had a baby? Right. These are the kinds of jobs one must be glad to be rid of.

HR Wench said...

For states that do NOT have state leave laws that trump FMLA:

The FMLA says if you have accrued "vacation time" available to you when you take FML you can use it during the leave (unless you use STD of course). If you do not have any "vacation time" to use during the last 6 weeks of your leave then it doesn't matter to your pocket book that they will not give you the increase until you return. When it comes to using accrued "sick time" during FML it depends upon your company's policy if you can use it or not.

Almost every employer I've ever worked for has used the PTO (paid time off) model where sick and vacation are lumped together and as such if you had PTO when you went on leave you automatically were using it until you came back or it ran out.

If you do have paid time off of any type to use during your last 6 weeks of leave the FMLA still doesn't require your employer to retro the raise.

The 'reinstatement rights' part of the law is probably what is tripping you up here. Once you physically come back to work, if you would have received a raise while gone they need to give it to you THEN. Not while you are actually on the leave though.

Sorry for the loooooong comment. I'm wordy.

Other HR pros: If you think I'm wrong please let me know!! This is how I have read the regs but I certainly could be wrong. :)

another hr rep said...

In agreement with HR Wench. My last company did not give increases until a person returned from leave. My current company does, but they are consistent with this practice for all FMLA leaves. Personal leaves trigger a different practice, but again consistency is the key.