FMLA is silent on this specific circumstance. The regulations generally focus on reinstatement rights (i.e., what happens to the employee’s job when she returns to work), not on what happens while she is out on leave. So, in answering this question, we’ll have to consider the spirit of the regulation, rather than explicit language.

First, under FMLA the reinstated employee has no less right, and no greater right, to the benefits and conditions of employment than if she had been continuously employed during the FMLA period. The federal Department of Labor, which enforces this law, generally takes the broad view that taking FMLA leave cannot be used as a negative factor in employment actions, including hiring and promotions.

In your circumstance, if the employee had been continuously employed during the posting period, she would have been entitled to apply. Presumably, since she received the promotion, she was fully qualified for the new position, and would have been given the new job regardless of whether she was on leave. From this perspective, you did the right thing in allowing her to apply.

Technically, one could argue that an employee’s right to these equal “benefits and conditions of employment” was applicable when she was reinstated, not while she was out on leave. However, you cannot disadvantage an employee on FMLA leave by applying policies that you don’t apply to employees taking other types of leave. And, of course, before implementing any type of policy limiting hiring and applying for promotions there are other compliance issues to consider, such as EEO and ADA.

In helping your organization recover from this sensitive issue, your best tool is communicating a few key messages. First, be clear in communicating that the employee’s leave did not give her an advantage, or disadvantage, in the promotion process. She followed the same application and consideration process as every other applicant, and her leave was immaterial. The next point is that the best outcome for the organization was achieved—the most qualified candidate won the promotion. Finally, it’s important to realize that while your communication may be primarily intended for those upset over the promotion, it also will be received by others who may be worried that use of leave may negatively affect their own career development within the organization. By taking the high road on this issue, you’re communicating your commitment to abide by both the spirit and the letter of FMLA.

SOURCE: Ophelia Galindo, Buck Consultants, Orange, California, May 1, 2008.

LEARN MORE: Tips for minimizing FMLA costs.

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Many organizations handle paid maternity leave through their disability program. It has recently become popular to develop maternity/paternity leave programs that apply to both parents and also cover adoption and the need to take time off for children beyond the infant stage (such as attending school programs). According to a recent survey conducted by the Society for Human Resource Management, the percentage of organizations offering paid maternity leave increased from 14 percent in 2003 to 18 percent in 2007; the percentage offering paid paternity leave jumped from 12 percent to 17 percent over the same time period. Practices vary considerably by industry.

One recommendation would be to view this benefit from a total rewards perspective. Evaluate the business needs for human capital, review the challenges the workforce is posing, evaluate what is valued by the target population, and benchmark the practices at peer organizations. Once your firm has achieved a better understanding of these issues, it can better determine what would make the most sense for its employees.

With regard to the differences between management and staff classifications, the firm should evaluate the reasons for segmenting the plan and review state laws. The recent trend has been to minimize the distinctions between management and staff or exempt and nonexempt positions. In general, needs don’t change based on position, although employees in nonexempt positions who do not have the flexibility to work at home may have greater needs. Providing distinctions in benefit programs tends to create caste systems that can be detrimental to morale.

SOURCE: Steven F. Cyboran, Sibson Consulting, a division of the Segal Co., Chicago, April 25, 2008.

LEARN MORE: Some companies are taking steps to help identify pregnancies that could result in premature births and costly claims.
 

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Educational reimbursement does not need to be a one-size-fits-all policy. Instead, your organization might want to consider creating a policy that can be easily adapted to varying situations.

The first step would be to meet with your top executives to discuss and agree on the objectives of your company’s educational reimbursement policy. Is it designed to:

• Attract and retain the best employees?
• Provide them with opportunities to improve skills/capabilities and enhance their contribution to the organization?
• Help them continually improve capabilities for their own benefit?
• Deliver any combination or all of the above?

Since each case likely is different, make your policy flexible enough to accommodate each one. For example:

1. Is the employee taking the course at the suggestion or request of the employer?

1. Is taking the course a requirement of getting hired?
2. How does the company benefit?
3. Is it intended to reward a high-potential employee for a job well done?
4. Are you including the course as part of a package aimed at recruiting a particular high-potential individual?

2. Is the employee taking the course for personal or professional development reasons?

1. If so, how does the course directly apply to the employee’s contribution to your company?
2. Is there still some benefit to your organization, even if the course does not directly apply to the employee’s contribution to your company?
3. Is there no evident benefit to your company?

3. What is the bottom-line cost for your company?

1. Financial: Is it a $50,000 MBA or $300 seminar?
2. Time: Are you giving paid time off or is it an evening program?

We recently received applications in answer to our job advertisements. However, we cannot complete the recruitment process because we’ve just learned we don’t have enough funds to cover salaries for the positions. How do we inform the applicants? Even more important, how do we repair any damage/fallout from having to abruptly terminate our recruitment?

—Surprised Hiring Director, nonprofit, Nairobi, Kenya