The Essential Guide to Family & Medical Leave

chapter 10 | reinstatement | 225
Example: FunCo also offers productivity bonuses to its in-house sales staff. Employees
who sell at least $10,000 worth of products in a month receive $100; employees
who sell at least $15,000 worth of products receive $200. Kara works in the sales
department and often earns a bonus. During November, however, her sales were only
$6,000, because she took two weeks of FMLA leave to care for her son. The company
does not have to pay her a productivity bonus for that month.
Lessons from the
Real World
An employer may prorate a production bonus
to account for FMLA leave.
Robert Sommer worked as a financial administrator for The Vanguard
Group. Sommer took eight weeks of FMLA leave, from December 7, 2000 to
February 4, 2001.
Vanguard had a partnership plan that paid employees an annual bonus
based on company performance that year. Each employee’s bonus factored
in the employee’s position, how long the employee had worked for the
company, and how many hours the employee worked during the year.
Employees who worked fewer than 1,950 hours during the year would receive
a prorated bonus; hours spent on unpaid leave didn’t count as hours worked.
Vanguard gave Sommer a prorated partnership plan bonus for 2001
because his FMLA leave brought his total hours worked for the year below
the 1,950-hour threshold. Sommer received $1,788.23 less than he would
have gotten had he worked the requisite number of hours.
Sommer sued Vanguard, arguing that it unfairly penalized him for taking
FMLA leave by reducing his bonus. He claimed that the bonus was based
on an “absence of occurrences” because it depended only on showing up
for work. But the court disagreed with Sommer’s argument. It found that
the partnership plan bonuses were productivity bonuses and that hours
worked provided the basis for measuring productivity. Because the bonus
was performance-based, the company could legally provide a lesser bonus to
recognize the time he was out on FMLA leave.
Sommer v. Vanguard Group, 461 F.3d 397 (3 rd Cir. 2006).