A surgical resident sued her employer for gender discrimination. She complained to hospital officials that she was being treated unfairly because of her gender; shortly after, she was told her contract wasn’t being renewed, because of performance problems.

The main dispute centers around a negative performance review. According to the company, the review was completed before the resident’s bias complaint, as shown by the date on an electronic copy of the document.

However, the employee claimed the hospital wrote the review after the complaint as an excuse to let her go, and then backdated the file.

Court-appointed tech experts examined a copy of the file, but saw no evidence the employer had tampered with the data. The employee then asked the court to obtain the hard drive from her supervisor’s computer, and the court agreed. However, the hospital claimed the drive was reformatted and erased because ti crashed.

That sealed her case, the employee argued. Why? By destroying the electronic evidence, the hospital showed it was guilty.

After a jury ruled for the hospital, she asked the court to open a new trial and tell the jury the employer intentionally got rid of evidence. The court disagreed, though. There was no reason to believe the reformatting was intentional, especially after the hospital already turned over the file in question.

Cite: Paylan v. St. Mary’s Hospital Corp.

If an employee has taken FMLA leave, that can make the situation even more complicated. Take this recent case as an example:

A sales rep had been highly regarded by his employer. Three out of his four most recent performance evaluations rated him as “exceeding expectations.”

That changed after he took a month of FMLA leave to be treated for alcoholism.

Two weeks after he came back, it was time for his next review. His boss noted that his sales had dropped and there had been problems with his communication skills. The review concluded the employee failed to meet expectations, and he was placed on a 30-day performance improvement plan.

When he failed to bring his numbers back up in time, he was fired — and he sued the company. He claimed he was a good employee and was unfairly terminated because he took FMLA leave.

The employer argued that despite his previous success, his performance started to slip, as his most recent review showed.

But the company lost the case.

The reason: The court wasn’t convinced he would’ve gotten a poor review if he hadn’t taken leave. As the judge noted, missing a month of work must have caused his sales to suffer. The company should have adjusted its standards to account for the time he was gone.

Managers need to be careful about how they evaluate employees who return from medical leave. Even if bias isn’t intentional, companies can still get in trouble when an adverse action is in any way tied to an employee’s use of FMLA.

Cite: Burris v. Novartis Animal Health U.S., Inc.

The scene 
“This is enough to make me want to shut down our Internet connection,” VP Paul Barker announced as he stepped into the office of HR manager Lynne Argos.   

“Someone downloading something they shouldn’t?” Lynne  asked.   

“Not exactly,” Paul continued. “But this is the third time this month someone’s walked into a performance review with ‘average’ salary figures taken off some Web site.”

“Let me guess,” Lynne  said. “Those figures always show the person should get a big raise, right?”

 Unrealistic figures?   
” You got it,” Paul answered. “Then, the supervisor has to defend pay scales here, and it gets ugly from there.”  

Lynne turned toward her computer and punched in a URL as she spoke: “I’ve looked at some of those salary sites. Most of them seem off-base to me, from what I know of pay rates for various jobs. Here, this one, for instance, shows customer service people making about 30% more than what we pay – that’s unrealistic. They obviously do that to get people to start job-hunting at those sites.”   

“Sure, but no one wants to believe that,” Paul groaned. “They’d rather think that we’re low-balling them on pay.”   

“It’s bad for business if everyone walks around thinking that way,” Lynne  said.   ”I’m concerned about that,” Paul agreed. “We pay people fairly. But I don’t know how to change their perception.”   

If you were Lynne, what would you recommend to Paul?   

Teresa Prenger, personnel manager, New Bremen, OH 
What Teresa would do: In this situation,  you have to provide employees and  managers with some information on how  you arrive at salaries. In our case, we use data from regional industry associations.  That’s a lot more accurate than what you’ll get off a Web site. 
Reason: Even your managers may not know how salaries are set at your company,  so it doesn’t hurt to make sure everyone’s  aware of the process for determining pay.  That can overcome the false impression they’re getting. 

Allison Donley, HR manager, West Grove, PA 
What Allison would do: That can  be difficult, especially if you’re a small  company, like us. We try to explain that we offer other benefits besides salary – such as  flexible hours and a family-friendly  atmosphere – that make up for what  the big companies might be paying. 
Reason: You need to highlight the  positives of working for your company  and explain that every company, even the  higher-paying ones, have their negatives.    

Linda Russo, HR manager, Holden, MA 
What Linda would do: I can tell you how  we handle it.  Once a year, we provide employees with  a statement that totals the dollar value of  their benefits and salary. That’s our way of showing them what they’re really making -  salary plus vacation, sick time, retirement  contributions, etc.
Reason: I’m skeptical about those salary  figures on the Web, but I suspect in some  instances they’re including the costs of  benefits, too. When employees see how our figures match up, they get a better  picture of what we offer.