I work for the largest bank in the world. I am currently on FMLA with my newborn daughter. My employer is calling me on leave wanting to conuct formal performance evaluation stating that if I wish to remain and officer of the company, it would be wise to take the evaluation and be a team player. Does this sound right to you? There are other things that have been documented such as remarks like "Your election for FMLA is really putting us in a tight spot". etc etc Let me know, thanks

1 answer  |  asked May 13, 2005 6:25 PM [EST]  |  applies to Texas

Answers (1)

Matthew Hill
Document FMLA Threats

The timing of your employer's request to evaluate you is very suspicious, especially in light of the other comments that have been made. The statement that accepting the evaluation will make you a "team player" implies both that the evaluation will be a poor one and that the company may take some action on the basis of the evaluation. Paired with the comment that your leave puts the bank in a tight spot, the comment (if made by someone with decision-making authority) could constitute direct evidence of FMLA retaliation if the bank takes some adverse action against you as a result of the evaluation.

A few thoughts:

1) Because you are already out on FMLA leave, the bank has presumably already approved the leave and made the decision not to designate you a "key employee." Thus, the "tight spot" your employer has been placed in is irrelevant.

2) You will want to be careful that the total number of days of work you miss related to the birth of your daughter (including before the birth) does not exceed twelve weeks. Otherwise, the bank may argue that you have exceeded your leave and terminate you.

3) I have advised clients who have come to me at the stage you are at now to record relevant conversations. Only do this if the recordings take place in a state where this is permissible (including Texas). Also, it may be worthwhile to review your handbook to determine whether it prohibits recording conversations at work. While such recordings may still be permissible, such a policy creates subsantially greater risk.

4) The risk in not participating in the evaluation is potentially greater than that of participating. If you do participate and there are negative consequences, you could potentially have a right to redress what is done to you. If you do not participate, the bank may accuse you of insubordination.

5) What you choose to do somewhat depends upon your goals. If you see your future with the bank, perhaps you should take the most diplomatic road possible and ignore some of the bank's offensive comments and behavior. If the bank's behavior has so offended you that you no longer have an interest in working there, or if you are otherwise dissatisfied and hoping to move on, you may be best served by gathering evidence for a retaliation claim to either use as leverage in severance negotiations or to pursue a claim in court.

6) Overall, you could probably benefit from speaking with an employment attorney who can talk with you about all the details of your situation and work with you to develop a plan of action that will help you best accomplish your goals. The thoughts I have here are only general ones, and any specific action plan should be individually tailored to the details of your situation.

Matt Hill

posted by Matthew Hill  |  May 13, 2005 7:09 PM [EST]

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