Problem After Return to Work from Maternity Leave
johnnyBravo
57 Posts
We have an employee in sales who returned from maternity leave about a week ago. We’re aware that she is entitled to return to the same or equivalent position and pay, and she has that: She is back at the job she had and is being paid the same.
However, she has come to HR complaining because she was managing a new—and major—account before she went on leave. (She managed a number of client accounts and while most of them were transferred to her co-workers when she took leave, she apparently has been given most of them back, but not this one.)
Her supervisor told her that he doesn’t want the account to change hands again, that the client is comfortable with the current account manager, etc. The employee says that she is losing out on future commissions related to the client as well as the resulting opportunities that could come from handling the account, and that she’s effectively being punished for going on leave. Is she right? Must all responsibilities that may have been shifted away to others be returned in such a situation? Or do the business needs prevail?
Comments
In return from FMLA leave issues, courts can look at pay, status, responsibility and other things to determine if the "new" position is "equivalent" to the old position. There have also been some decisions that simply say if the money is the same, go home and have a nice day.
Understanding your own circuit's take on this matter will help to guide your decision. In any event, the pay is not equal due to the loss of future commissions, so I think you are in a little hot water if you can't make the money right. If you believe that the $-only opinion will stick in your circuit, then you can simply make sure that she is paid comissions off the account even if she isn't working it or you can make sure that she is assigned to an equally lucrative account, preferably one that is equally important to your Company. If you don't believe that the $-only opinion will stick in your circuit, I recommend that you get her on another account that is equally lucrative and equally important to the Company and get her buy-in. Because it's difficult to assess "equal importantness" or to guarantee "equally lucrative", returning the focal account to her portfolio is the safest option.
There are also issues at stake here with regards to the pregnancy discrimination act. If she can point to a man having been out for similar time and retaining an important, lucrative account, you have additional things to be concerned about. Is the client saying they don't want to be moved back?
Thanks--I really appreciate your advice and will do some research on this as you suggested.
Meanwhile, while the client hasn't said "don't move me back to the original account manager", her supervisor believes it's best not to have the account change hands twice in a matter of months,and that the rapport/relationship between the current manager and the client "optimal" (his term) and he doesn't see the point in risking that
Of course, if it hadn't been a new account in the first place--if she'd had it for 6 months or a year--we probably wouldn't even be in this situation b/c the "temporary" manager of the account would be just that. In this case, the person it was shifted to while she was out on leave has now managed it about 3 times as long as she has...
It sounds like that once I straighten this out, I ought to meet with the supervisor again and see if we can agree on some ground rules in circumstances such as these going forward. Thanks again.
If you have access to counsel, it never hurts to beat the supervisor with the lawyer stick if counsel's advice is contrary to the manager's wishes. I always document my stand and communications on these issues and put them in an incident file. There's an ever widening net of personal liability in discrimination issues. If you work for a SMB/SME, you may want to ensure that there is EPLI or O&D or liability insurance that would specifically cover you, personally.
The FMLA issue is fertile ground for litigation. In my opinion, a judge would probably rule that a jury could reasonably decide that anything other than returning the account to the person returning from FMLA leave was not returned to an equivalent position and summary judgement would be denied. You'd then be looking to settle to avoid trial.
The PDA issue is also fertile ground, particularly if you've had a male out for newborn child bonding FMLA, and that person came back to all their accounts. That may be problematic for your company even if the male had no "new" accounts. It could be left to a jury to determine how new is new enough. There's always going to be a concern that claims of newness are pretext for illegal discrimination.
Hello Johnny,
I think your company and the supervisor need to rethink their position- you are in hot water. I am sure that the client will not be that upset if the account is returned to the original sales person who had it prior to a "disability". I would advise that you restore the account to her asap and have council help you do some damage control because you may be sued.
Best of Luck,
Angie
HR Manager