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Illegal/unethical editing of HR documents by HR Texas

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  • Illegal/unethical editing of HR documents by HR Texas

    Little background before I expound further on my post. My wife has worked for a local college business office for over 6 years. She is excellent at what she does and is always noted for it on her performance evaluations during her annual review (I believe she has never gotten anything but exceeds expectations).

    The one and only thing that she has issues with is that she occasionally calls in sick due to migraine headaches. I've had a few in my life, and yes they suck. Her migraines however are debilitating. She looses her vision during them, light and sound cause her extreme pain, and as such she doesn't make the nearly hour long drive to her office.

    Well, her former boss finally had enough I guess because they finally went and did her first formal written warning for her absences. However, her initial report sent to HR made note of the positive aspects of her performance as well as the only negative she had. Apparently HR took it on themselves to edit out ALL the positive and paint her to look like nothing but a bad employee. They even went so far as to say that her in scheduled absences were negatively affecting her job performance, when even with having to take a day off for her migraine' she still never once missed a deadline, had anything wrong with her work, and still had to train someone else in the office who after a year later still can't do her job correctly,

    In our opinion, editing the initial discipline form to state that her absences was negatively affecting her job performance is essentially slander (or libel....whichever one it is when it is in print). She says there is no point fighting it because they will retaliate, but I try to tell her they can not legally retaliate against her or she can take them to court. But the main point here is if HR can legally or ethically alter a submitted discipline form for the sole purpose of making someone appear to be a problem employee or not. If this is indeed what they did, what recourse is available?

  • #2
    Did your wife get a copy of the altered review? It sounds like she did. Is there a process for her to put her own comments on the review? That might be the best option.

    Has your wife seen a doctor about the migraines? If she us under dr care then she may be able to apply for intermittent leave under FMLA.


    • #3
      There are a number of responders here, including myself, who have first hand knowledge of what your wife is going through with her migraines. They are indeed difficult, to say the least, and she has our sympathies. I'm sure I can speak for the others when I say that.

      That being said, neither you nor she is the best judge of whether her work is suffering. The fact that she has never missed a deadline does not speak to the quality of the work, and neither you nor she is the best judge of that, either. Nor does it address the fact that her absences cannot help but impact how others do their work. But whether you agree or disagree, if this is their honest opinion it is neither illegal nor unethical for them to address in the way you have describe. Even if they are wrong and she can prove it (or thinks she can.)

      Additionally, since this information is has not been shared with any third party, by definition it is not slander, libel, or defamation of any kind. (And yes, under these circumstances they can indeed "retaliate" and it will not be illegal.)

      The bottom line is the management evidently does not agree with your wife as to how the migraines are affecting her, and their opinion is as valid as hers.

      Now, with all that being said, does she qualify for FMLA?
      The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


      • #4
        Agree with CBG and would ask what "occasionally" means. My migraines used to occur 3-4 times per year (and not always on workdays). In the past week, mine have been almost daily. So occasionally can mean different things.

        And often the employee's perspective of their performance (even with great annual perf review) can be skewed.

        Her best bet at this point is to get FMLA paperwork filled out -- she needs to have worked at least 1250 hours last year, but if she is full time and only missed "occasionally", she should have no problem meeting the criteria and I would definitely expect a local college to have more than 50 employees in a 75 mile radius unless it is an online one.

        eta: And it could be that this is not considered a "Full performance appraisal" by HR but rather they wanted to look at the attendance issue and pull that out separately from all the other facts. That is not illegal. You can be the best employee and if your attendance is bad, they can use just that fact to warn/discipline an even term if needed. It could be that the manager just put too much information into the report for HR and they decided to pull it out. That would not be uncommon to separate the issue(s).
        Last edited by hr for me; 10-24-2014, 07:05 AM.


        • #5
          Just a clarification of what FMLA would accomplish:

          FMLA would provide her with up to 12 weeks or the equivalent in days/partial days of medical leave for which the leave would be protected. They would not be able to discipline her for the absences unless she ended up taking the equivalent of MORE than 12 weeks worth of time off in a 12 month period. (There are several different methods of tracking the 12 month period and the employer gets to choose which one it is, though it must be the same for all employees.) ONLY absences related to the migraines would be protected.

          However, FMLA does not provide any protections with regards to the quality of her work. If they are seeing an impact on the quality of her work, even if she does not and even if the impact is directly tied to the migraines, FMLA does not protect her and she can be counseled or disciplined for poor performance EVEN IF it is related to the migraines. There are no circumstances whatsoever under which an employer is required to accept a quality of performance that would be unacceptable in an employee who was not taking FMLA.

          Let me give you an example of what I mean. Let's say that Larry, Rose and Selma are data entry operators. Rose has been approved for FMLA. The standard of work is that each of them may make 5 entry errors a day. If the employer suddenly decides that Rose can only make 3 entry errors a day but Larry and Selma can still make 5, that's illegal under the FMLA statute. But Rose can still be limited to 5 entry errors a day; she does not, by virtue of her FMLA, get an increase to 8, even if the additional errors are caused by the condition for which she has FMLA.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.


          • #6
            You mentioned that this was a "former boss." Is your wife no longer working there, or has she got a new boss now? Not sure I understand what the reference means.

            Agreed with hr for me - this was a written warning, not a revised evaluation. HR had to edit boss's good comments because that's not the point of this document. It's a disciplinary document, focused solely on the negative aspects of her performance that they wish to see improve. It is not in the same category as an evaluation, and I have never included praise for good parts of performance on the ones I have written. If not taken seriously, and if performance is not improved, it can lead to further discipline, including termination.

            I also agree that her performance still needs to be up to par, despite her migraines and absences. Past evaluations may be on point, or perhaps offered by a boss unwilling to rock the boat. I have seen several years of "meets or exceeds expectations" suddenly go downhill when the boss is faced with a crucial error on the wrong day. Suddenly, the employee has always been bad at her job, had awful attendance issues, took too many breaks, was rude to coworkers or customers, etc. And I have nothing in the file to document a long-term problem employee, and I have to turn around and press supervisors for more history, details, etc. that I can put into a writeup. I don't doubt that your wife likely did a great job, but her absences are affecting her work and the backup system isn't working. So they are taking action.

            But I am a little concerned that an HR department is aware of a chronic medical condition that affects her ability to do her job, and has not offered FMLA already. That is like FMLA 101, to expect a disciplinary meeting regarding attendance turn into an FMLA situation. Definitely look into whether they are large enough to be a covered employer.