Don’t let your performance review create an employee leave claim

Joanne worked for the company from 2013 to 2025, being promoted three times. The employer assessed employees’ performance relative to their peers. A critical metric used in the assessments calculated an employee’s total billable hours divided by the standard hours an employee is expected to work.

The standard-hours variable didn’t account for leave taken as paid time off (PTO). Employees who took short-term disability as part of maternity leave were required first to use 5 days of PTO.

Joanne received high performance scores every year except 2021 and 2024, when she took extended parental and pregnancy-related disability leave. The company’s assessments of her work during those times resulted in lower base salary increases because of her leave. Joanne also took leave in 2025 and received lower performance ratings — and a lower salary increase — than if she hadn’t taken leave.

On December 2, 2025, the employer told Joanne she was being terminated as part of a company-wide reduction in force. The employer’s decision to let her go also reflected her performance, including the leave she had taken.

Joanne sued, claiming that the company failed to provide protected leave; that the employer’s performance assessment metrics failed to account for protected leave under the federal Family and Medical Leave Act (FMLA), resulting in lower compensation. She also claimed the employer violated the federal Pregnant Workers Fairness Act (PWFA).

The employer argued that it didn’t treat employees on FMLA leave differently than employees on other forms of leave.

The court pointed out that when performance issues are a direct result of an employee’s FMLA leave, especially when they lead to termination, an employee’s FMLA rights have been interfered with. Even if an employer’s actions don’t violate the FMLA’s right to an equivalent position, failure to provide certain conditional pay increases may violate an employee’s right to take FMLA-protected leave, which ultimately results in an employer interfering with that right.

Joanne’s performance scores didn’t account for her PTO, yet the employer required pregnancy-related disability leave takers to use PTO for part of their leave.

The court also held that when leave is granted as a PWFA reasonable accommodation, an employer’s production standard may need to be prorated to account for the reduced amount of time the qualified employee worked.

The court ruled in Joanne’s favor, along with other similarly situated employees, denying the employer its request to have the case dismissed.

Joanne Barela v. Deloitte Consulting LLP, Northern District of California, No. 26-cv-03051; August 17, 2026.

Key to remember: Performance appraisal methods and criteria shouldn’t be designed to hold employee-protected leave against an employee.

Court decisions are based on the specific facts presented and each court’s interpretation of the law. Because courts may reach different conclusions, similar situations can lead to different outcomes. Employers should avoid relying on a single case as definitive guidance and instead assess each situation carefully, considering applicable laws, and seeking advice when needed.