Sommer v. The Vanguard Group, 206 U.S. App. LEXIS 216381 (3d Cir. Pa. Aug 2, 2006):
Under the Family and Medical Leave Act ("FMLA") employers cannot interfere with, restrain, or deny the employee's exercise of or the attempt to exercise, any right provided in said Act. Accordingly, refusing to authorize FMLA leave and/or discouraging an employee from using such leave could be considered unlawful FMLA interference by an employer. Such interference may open the door to the filing of an FMLA "interference" claim by an employee in which an employer may be found liable for civil damages that include: compensatory damages for any wages, salary, employment benefits or other compensation lost by reason of the violation; and liquidated damages.
This is the first case in which an appellate court has been required to distinguish, for purposes of an FMLA interference action, between the two classifications of company bonus programs, i.e., the "absence of occurrence bonus program", which may include safety and perfect attendance bonuses which do not require performance by the employee, vis a vis a "production bonus program." In Sommer, the employee claimed that his employer had illegally interfered with his FMLA rights when, upon his return from approximately eight (8) weeks of short-term disability FMLA leave, the Company did not award him a full annual bonus payment under its hours-based Partnership Plan, but instead awarded him a payment prorated on the basis of the time he was absent. The U. S. Court of Appeals for the Third Circuit held, interpreting FMLA regulations as well as various Department of Labor Opinion Letters, that although an employer may not reduce an absence of occurrence bonus paid to an FMLA leave taker if the employee was otherwise qualified but for the taking of an FMLA leave, it may prorate any production bonuses to be paid to an FMLA leave taker by the amount of any lost production (be it hours or another quantifiable measure of productivity) caused by the FMLA leave.
Thus, production bonuses, which require some positive effort on the employee's part in the workplace as distinguished from a bonus that merely rewards an employee for compliance with rules, may be prorated to account for the hours not worked by an employee who takes FMLA leave.
Act No. 207 of September 27, 2006: The recently enacted local Act No. 207 of September 27, 2006, ("Act No. 207"), prohibits private and public corporation employers from displaying employees' Social Security numbers on identification cards and/or in any other visible place or document of general circulation. Employees may voluntarily and in writing waive this protection, but said waiver cannot be required as a condition of employment. Employers found in violation of Act No. 207, including not protecting the confidentiality of its employees' Social Security number, could be subject to a penalty of not less than $500 up to a maximum of $5,000 per case.
Act No. 217 of September 29, 2006: Governor Acevedo Vilá recently signed into law Act No. 217 of September 29, 2006, ("Act. No. 217"), which makes the adoption of a Protocol for the Management of Situations of Domestic Violence mandatory at the workplace. Act No. 217 states that said protocol must provide a declaration of public policy, legal basis and applicability, personnel responsibilities, and procedures and guidelines to follow in the management of domestic violence cases.
If you have any questions, or wish additional information regarding this matter, please contact any of the attorneys at the Labor & Employment Law Department of McConnell Valdés.
