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Second Circuit: Application of Neutral Policy Does Not Interfere with FMLA Rights

As recently reaffirmed by the U.S. Court of Appeals for the Second Circuit, neutral application of a policy to prorate incentive compensation contributions during leaves of absence does not unlawfully interfere with an employee’s rights under the Family and Medical Leave Act (FMLA).  In Clemens v. Moody’s Analytics, Inc., Plaintiff contended that he was denied benefits because his bonus was already “self-prorating” due to a reduced work period that naturally yielded a lesser bonus amount. In effect, he claimed, additional prorating was a doubled-reduction. Since the undisputed evidence showed that the employer’s prorating policy was neutrally applied based on the length of the employee’s leave (regardless of the reason for leave), there was no discriminatory interference with FMLA rights.

This decision serves as an important reminder that employers must review seemingly neutral policies (such as, for example, attendance or bonus policies) to consider the impact of those policies on employees on FMLA leave.

Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 151


About this Author


Kristie M. Iacopetta is an Associate in the Long Island, New York, office of Jackson Lewis P.C.

Ms. Iacopetta assists federal contractors in the preparation of affirmative action plans and defends contractors against allegations of discrimination on the basis of race, color, religion, sex, national origin, disability, and veteran status in connection with audits by the Office of Federal Contract Compliance Programs (OFCCP) and in related litigation brought on OFCCP’s behalf by the Solicitor’s Office at the U.S. Department of Labor. She also...