“Penalizing” Employee for Using Leave, Quirky Question # 64
Quirky Question # 64:
We have a number of programs at our company that are designed to reward employee behaviors that are important to the success of our company. For example, we provide a financial benefit to employees who have 100 percent attendance annually. Another example is that we provide our employees a bonus based on a combination of factors, including quality of their work, contributions to their department, and commitment and loyalty to our firm.
We periodically have employees take different types of leave, such as leave under the FMLA, maternity/paternity leave, and leave under the Americans With Disabilities Act. One of our employees who recently took FMLA leave advised us that she does not think she should be disqualified from 100 percent attendance bonus, and should not be penalized for the bonus we provide based on the criteria listed above.
Her position makes no sense to me. Why would she qualify for a perfect attendance bonus if she missed work? Why should she qualify for a bonus based on her contributions when other people are working year-round and contributing more than she is? Am I missing something?
Roy’s Analysis:
This is a tough question, on which courts are rendering inconsistent opinions. So, while I’ve offered a few thoughts below, I encourage you to monitor these kinds of situations carefully to see how this area of the law develops.
That said, upon first glance, your position seems eminently reasonable – how can a person who has been absent for some period of time qualify for a perfect attendance bonus? Similarly, how can an employee who has missed time (perhaps substantial amounts of time) be deemed to have made the same contribution to your firm’s performance as those who have been there every day?
The problem with this initial reaction, however, is that it fails to take into account the statutory protections afforded by the Family and Medical Leave Act (FMLA). Under the FMLA, an employee may sue her employer for “interfering” with the exercise of her statutory rights. An interference claim typically involves a five-factor prima facie case (i.e., the basic elements required to pursue a FMLA claim). The prima facie elements are: 1) she is an employee eligible for FMLA leave; 2) the defendant is a covered employer; 3) she is entitled to FMLA leave; 4) she provided notice of her intent to take leave; and 5) the defendant employer denied her the FMLA benefits to which she was entitled.
With regard to an “interference” claim, the fifth element can be that the employer somehow used the leave against the employee in an unlawful manner, as ”unlawful” is defined by the statute or the relevant regulations. Therefore, it is important to review the regulations. Under 29 C.F.R. §825.220(c), an employer cannot use the taking of FMLA leave as a “negative factor” in employment actions. As some courts have pointed out, if an employer takes an employment action based, in whole or in part, on the fact that the employee took FMLA-protected leave, the employer has denied the employee a benefit to which he or she was entitled.
For example, in the very recent case of Wojan v. Alcon Laboratories, Inc., Case No. 07-11544 (E.D. Mich. September 15, 2008), the court analyzed a situation where an FMLA-eligible, drug sales employee took FMLA leave. In the years before she took FMLA leave, the employee had been a very high performer, receiving high rankings on her performance evaluations based on both subjective and objective ranking methods. She had annual sales rankings that rose from number 53 to as high as number 12 in the nation, which qualified her for the company’s highest sales award, the President’s Club.
In late 2004, however, the employee took FMLA leave in connection with the birth of her child. The Company did not adjust her sales quota to account for the time she was away from work. Consequently, with 12 weeks away from her job, her comparative sales rankings dropped to number 89 nationwide. Given her low rating, she was placed on a Performance Improvement Plan, and ultimately, discharged for poor performance. The plaintiff-employee argued that the company’s refusal to adjust her sales quota based on her leave “set in motion an unbroken chain of events resulting in her termination.”
The federal district court agreed, denying the employer’s summary judgment motion on the employee’s FMLA interference claim. The court concluded that by failing to re-set the employee’s sales quota, adjusting it for the time she was away from work, the employer had allowed the leave to negatively affect a term of her employment. (I note, in passing, that the plaintiff brought a number of other claims as well, including FMLA retaliation, sex discrimination, pregnancy discrimination, marital status discrimination – she was a single mother — and retaliation under the state discrimination statutes. There also were a number of other facts that substantially strengthened the employee’s case and portrayed the employer in a negative light. For example, the plaintiff presented evidence that her supervisor had told her upon her return from leave that she had better not be showing baby pictures to her colleagues and that she had better be out selling. How these collateral facts affected the determination of the court is difficult to pin down with precision. Let’s just say, however, that they could not have helped the employer.)
Another very recent case (decided just last week), from the federal district court in Minnesota, assessed many of the same issues. In Dickinson v. St. Cloud Hospital, No. 07-3346 (D. Minn. October 20, 2008), the court considered whether the hospital’s method of calculating “absenteeism” interfered with the plaintiff-employee’s exercise of her FMLA rights. The hospital compared the amount of time an employee worked against the amount of time the employee was scheduled to work. If an employee’s absenteeism, calculated in this fashion, reached a certain percentage, the employee began a progressive disciplinary cycle. Dickinson, an LPN who had missed time off due to various physical problems that qualified her for FMLA leave, was disciplined for excessive absenteeism (first with written warnings, then with a suspension, and eventually, with discharge). She sued, claiming that the hospital’s method of determining the absenteeism percentage should have included the qualified FMLA leave time as part of the time in which she was scheduled to work. She argued that had her FMLA absence time been included in the denominator of the calculation, it would have resulted in a lower absenteeism percentage and she would not have been subject to discipline.
The Minnesota district court agreed, although it pointed out that different courts were reaching opposite conclusions on this issue. Nevertheless, the court found that the hospital’s method of calculating absenteeism had resulted in her FMLA leave constituting a “negative” factor, in violation of the regulations discussed above. Again, the employer’s summary judgment motion on the interference claim was denied.
Applying the principles of these cases to your situation suggests that you should not consider the qualified FMLA leave when assessing your employee’s “perfect attendance.” I recognize that this seems incongruous but if you disqualified the employee from receiving your “perfect attendance” bonus, you would be using the FMLA leave as a negative factor. Arguably, this would trigger your employee’s right to assert an FMLA interference claim.
The same analysis would appear to apply to the more subjective “contribution” bonus paid out by your company. If you disqualified your employee from receiving this compensation simply because she had exercised her statutory rights to take FMLA leave, you again are using your employee’s leave as a “negative” factor, potentially exposing your company to an interference claim.
In sum, I’d simply urge your firm to move cautiously in this arena. The cases described above are very recent, having been decided within the last two months. As noted, other cases have reached the opposite conclusion. But, this is an area where you should at least evaluate the relevant issues when deciding how to proceed. Finally, of course, if there are other performance problems on which your decision-making is grounded, the mere fact that an employee has taken FMLA leave will not preclude you from taking disciplinary action, up to and including termination. Just make sure that you carefully document these other reasons because in all likelihood, you will be defending your discipline or discharge decision and will need to explain why these other variables, and not the FMLA leave, led to the company’s disciplinary action.
“Me Too” Evidence, Quirky Question # 63
Quirky Question # 63:
We are defending against a claim of age discrimination. The plaintiff has lined up a number of current and former employees, each of whom apparently intend to testify that during their employment, they also were (or are) victims of age discrimination. Is this legit? These other individuals never filed claims of age discrimination against us.
Roy’s Analysis:
Your question takes me on a trip down memory lane. More than 20 years ago, I tried my first case in federal court – an age discrimination case in which I represented the Goodyear Tire & Rubber Company. Due to difficult economic circumstances, Goodyear had been forced to reduce the number of wholesale tire salesmen in Minnesota. Although we won most of the cases emanating from this situation on summary judgment, one of these cases was tried to jury verdict.
During the trial, plaintiff’s counsel called a number of other witnesses, also former Goodyear employees in the protected age group, who wanted to testify about the end of their employment relationships with Goodyear under various circumstances. We sought to exclude this testimony, without success. We then sought to limit the testimony to issues pertinent to the case being tried. The judge who tried the case agreed that this limitation was reasonable and instructed the other former employees not to discuss the circumstances relating to their own separations from the Company. Witnesses, however, don’t always follow judges’ instructions, especially when they have something they want to say. One witness, therefore, began his response to an otherwise innocuous question, by stating, “When I was fired at age 57, blah, blah, blah.” We immediately objected, and the court instructed the jurors to ignore the witness’s comments.
Interestingly, however, the judge allowed the jurors to ask questions of the witnesses at the conclusion of the questioning by plaintiff’s and defendant’s counsel. As soon as my opponent and I had concluded our questioning of this particular witness, the judge invited the jurors to ask questions. Despite being instructed to disregard the witness’s testimony about his personal situation, the first question posed by a juror to him was, “Why were you fired at age 57?” Proof positive that you cannot un-ring the bell.
The jury came back with a plaintiff’s verdict, finding that the plaintiff had been fired in violation of the Age Discrimination in Employment Act. The extent to which the jurors were influenced by the testimony described above is difficult to ascertain. Happily, I’m pleased to report that the Eighth Circuit viewed the facts somewhat differently than the jury. The Eighth Circuit reversed, but rather than send the case back for retrial, the appellate court directed that judgment be entered for Goodyear. Case over, defense victory.
Some 20 years later, the issue of which other “Me-Too” witnesses can testify and what they can say, reached the U.S. Supreme Court. In the case of Sprint/United Management Co. v. Mendelsohn, No. 06-1221 (Sup. Ct. February 26, 2008), the nation’s high court evaluated the same issue described in your question and that I confronted in the Goodyear case. Ellen Mendelsohn sued Sprint for age discrimination. At trial she sought to present evidence from five other former Sprint employees whom she claimed also had been discharged because of their age. Sprint moved to exclude this evidence, pointing out that none of the other employees worked in the same Department in which the plaintiff had worked and none were supervised by the same person who made the decision to terminate Mendelsohn. The District Court excluded the evidence and the issue was presented to the Tenth Circuit. The intermediate appellate court apparently concluded that the lower court had applied a “per se” rule, mandating that the evidence be excluded, and instead offered its own analysis of the Rules of Evidence 401 and 403 (relevancy and prejudice), and how they should be applied to this type of evidence. The Supreme Court accepted cert to resolve the seemingly conflicting circuit court opinions on this issue.
The Supreme Court decision can be summed up in two words – “it depends.” The high court found that there should not be either a per se rule excluding such “me too” evidence, or a per se rule including such evidence. As the Supreme Court concluded, “The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact-intensive, context-specific inquiry.”
Here are a few thoughts for you to consider when evaluating whether the evidence presented by these other individuals is likely to be admissible in your case:
- did the manager who decided to terminate the plaintiff also make adverse employment decisions with regard to the other potential witnesses;
- were the adverse employment decisions the same (i.e., discharge, discipline, other);
- did the manager make any ageist comments toward your plaintiff or the other potential witnesses, and if so, were the comments the same or similar;
- did the manager engage in any biased conduct toward your plaintiff or the other potential witnesses, and if so, was the conduct the same or similar;
- if the decision-makers were not the same, did the plaintiff and the other former employees work in the same department;
- if the decision-makers were not the same, did the managers for the plaintiff and the other employees report to the same individual;
- were there any general corporate directives that affected the decisions to terminate the plaintiff or the other employees;
- were the employees basically the same age;
- were the employees similarly situated in other respects (type of job, length of tenure, education level, experience level, etc.); and,
- what role did your Human Resources group play with respect to the various decisions.
The answers to these and other questions will guide the court in assessing whether the “me too” evidence presented by your other former employees will be admissible. As the Mendelsohn court pointed out, this determination is “fact based” and depends on “many factors.”
Scope of Retaliation Claims, Family Members ?, Quirky Question # 62
Your pending question regarding the “temporal proximity” required for retaliation claims is interesting. I have a slightly different question, also involving retaliation claims.
What is the scope of the protections provided by retaliation provisions. For example, if one member of a couple, both of whom worked for us, sues us for discrimination in connection with her discharge, could we fire her husband? We think it would be a weird dynamic to employ the spouse of someone who is suing us. Similarly, if we terminated an individual and he later sued us for discrimination, could we refuse to hire his adult children if they sought employment with our company?
For example, in the recent case of EEOC v. Wal-Mart Stores, Inc., No. 07-CV-0300 (D.N.M. July 28, 2008), the federal District Court addressed a situation where a Wal-Mart employee, Ramona Bradford, filed a charge of discrimination against the company. During the next five months, Bradford’s two adult children applied for positions with Wal-Mart. Despite being more qualified than those hired, Wal-Mart rejected each of their applications. Wal-Mart also offered pretextual reasons for why at least one of these applicants was not hired, telling him that Wal-Mart had a “hiring freeze” notwithstanding the fact that the company hired others at the same time. Bradford and each of her adult children then alleged retaliation by Wal-Mart.
The question examined by the District Court was whether either of Bradford’s adult children (Robin and John) had engaged in any protected conduct encompassed by the retaliation provision of Title VII. The statute’s retaliation provision states, “It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because [the employee/applicant] has opposed any practice made an unlawful employment practice by this Title, or because [the employee/applicant] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Title.” Section 2000e-3(a). Because the court concluded that neither of the Bradford children had “opposed any practice made unlawful” or had otherwise engaged in conduct described in the statutory anti-retaliation provision, the court found that their retaliation claims should be dismissed.
In reaching this conclusion, the District Court observed that it was not obligated to defer to the EEOC’s own interpretation of the statute, as set forth in the EEOC Compliance Manual. The Manual provides that the retaliation provisions of the federal anti-discrimination extend to individuals “so closely related to or associated with the person exercising his or her statutory rights that [retaliatory conduct] would discourage that person from exercising those rights.” Nevertheless, the District Court found that given the plain and unambiguous language of the statute, the EEOC’s interpretation was “unpersuasive.”
The District Court opinion (which, whether you agree with it or not, is thoughtful and well-reasoned) noted that there was a split of authority on the scope of the anti-retaliation provisions. At least one federal circuit (6th) has found that the anti-retaliation provisions extend to family members or others closely associated with the person who filed the Charge of Discrimination, whereas other federal circuits (3rd, 5th and 8th) have concluded that the statutory anti-retaliation provisions do not reach these individuals.
The District Court in the Wal-Mart decision also considered the question of whether the party who filed the Charge (Ramona Bradford) had a legitimate retaliation claim against the company. The court concluded she did since she clearly had engaged in protected conduct (filing a Charge) and penalizing one’s family members for this action could deter the Charging Party (or others similarly situated) from engaging in this type of protected activity.
As the Wal-Mart case also illustrates, even if the husband did not have a legitimate claim, your action in terminating him likely will provide his spouse (who already has filed a Charge of Discrimination) with another basis on which to proceed against your company. As I suggested in my analysis of last week’s retaliation issue, I strongly encourage clients not to convert an infirm underlying discrimination claim into a compelling retaliation claim. Whereas your company may be well positioned to defeat the wife’s claim of discrimination, your question essentially concedes that you are retaliating against the claimant by firing her husband. In my view, that would not be the most ethical approach.
Finally, even if the ethical issue does not trouble you, I’m not convinced that your plan makes practical sense. If you have a capable, qualified employee, who is meeting your legitimate performance expectations, why would you want to fire him even if his spouse was suing you? I suppose that if you had an extremely small firm, there could be some awkwardness associated with employing the spouse of someone suing you, but for me that would be an insufficient basis on which to discharge someone. Moreover, you may discover that continuing to employ the husband provides your firm some very compelling evidence that your workplace is not discriminatory. For example, if the spouses were of approximately the same age, and the wife was suing you for age discrimination, your firm may be able to obtain some persuasive testimony from her comparably-aged husband stating that he has never experienced age discrimination. Similarly, for example, if the wife claimed gender discrimination, it would be interesting to pose questions to her husband about whether he has ever discriminated against women at your company, or whether he has ever observed discrimination against women. If he stated that he had not observed such conduct, to some extent, that undermines his wife’s legal theory. If, in contrast, he states that he has observed such conduct, there could be an interesting series of questions about why he failed to report these problems. You could inquire, “You knew our company was discriminating against women, you knew your wife was working here, and you said nothing to us to assist our firm to improve our policies and practices?” Silence, in this context, simply does not make sense.
In short, although your visceral reaction is that it would be “weird” to employ the husband, there well could be strategic advantages to doing so.
Timing of Retaliation Claims, Quirky Question # 61
I am the General Counsel of a small company. As our company’s only attorney, I have to provide expertise in a wide variety of substantive areas. In connection with retaliation claims, I occasionally hear about “temporal proximity.” When I’m advising my clients, I’d like to be able to provide them some clear guidance regarding the length of time during which they need to be sensitive to the possibility of retaliation claims. Can you share any insights into this issue?
The “temporal proximity” you reference is merely the length of time between the protected conduct and the subsequent adverse job action. The closer in time between the protected conduct (e.g., filing a complaint of sexual harassment) and the adverse consequence (e.g., transfer or discharge), the more likely courts are to infer a causal relationship between the protected conduct and the employer’s subsequent action. The more remote in time, the more likely that courts will conclude that there were other, unrelated or intervening factors that motivated the subsequent decision.
Although, in general, the closer the temporal link, the more likely courts will infer a retaliatory motive, every case must be evaluated on its individual circumstances. For example, imagine a situation where an employee complained of age discrimination on October 15 and an employer terminated his employment on October 20. It would surprise no one if that employee then accused the company of retaliatory conduct based on his protected conduct of filing a charge of discrimination. But, if the company had discovered on October 16 that the employee had been embezzling corporate funds for the preceding year, it certainly would be justified in terminating the employee. Such a decision would not be “retaliatory” notwithstanding the temporal proximity between the charge-filing and the employee’s termination.
A recent case from the federal court in the Eastern District of Tennessee illustrates the flip side of this situation. In Taylor v. Gatlinburg, No. 3-06-00273 (E.D. Tenn. August 26, 2008), a District Judge denied the City’s motion for summary judgment on the plaintiff’s retaliation claim. The plaintiff, Mike Taylor, a Captain in the Fire Department, contended that the City of Gatlinburg refused to let him take a test to become Fire Chief in retaliation for his involvement in a Fair Labor Standards Act lawsuit (FLSA). The surprising fact of the case was that Taylor and nine others had participated in the FLSA lawsuit 15 years before he was denied the opportunity to seek the Fire Chief position. Really! I’m not making this up.
The court downplayed the significance of the 15-year gap between the protected conduct and the adverse job action, perhaps justifiably. One reason the court did so was that the City seemingly advanced pretextual reasons for why Taylor was not selected as the Fire Chief. The City pointed to his lack of a college degree, but three of the four candidates who were allowed to proceed through the application process beyond the point at which Taylor was eliminated did not have a college degree. Further, the individual selected to be the Chief did not have a college degree. The court also examined other evidence suggesting a possible nexus between Taylor’s participation in the FLSA suit and his rejection for the Chief position. This evidence included statements by individuals that the City Manager, Cindy Ogle, who made the decision regarding who would be the Chief had been the City Manager 15 years earlier when the FLSA suit was brought and had periodically made critical comments about those who brought the suit, including Taylor. Taylor offered additional evidence that the Ms. Ogle also had stated that Taylor would never be the Chief because he had “sued the City.”
When evaluating this outcome, keep in mind the procedural posture of the Taylor lawsuit. The case reached the court on a motion for summary judgment by the City, a context in which all factual disputes are resolved in favor of the non-moving party (here, Taylor). Whether Taylor will be able to persuade the fact-finder at trial that the City Manager still harbored resentments about the FLSA litigation some 15 years after it had concluded remains to be seen. If he succeeds on his retaliation claim, it will be the longest time “gap” of which I am aware in a retaliation case.
Two final points regarding retaliation claims. First, as I tell my clients, do not convert an infirm underlying claim into a compelling retaliation claim. For example, an individual may file a charge of age, race or sex discrimination. The company may know that this claim is wholly without merit. But, if the company’s response to this “frivolous” claim is to terminate the employee or take some other adverse job action, the company may have created a very strong retaliation claim for the employee. In other words, a retaliation claim does not have to be connected to a valid underlying claim; it will succeed or fail on its own fact pattern.
Second, when confronted with a claim of discrimination, or a claim alleging some other type of statutory violation, it is preferable to bring in an objective observer when trying to determine how to address some other aspect of the employee’s conduct. For example, if an individual accuses a supervisor of sex discrimination and later seeks a promotion, it would be advisable to involve someone other than the accused in the determination of whether the employee should be promoted. If the accused supervisor is the decision-maker and decides that the employee should not receive the promotion, you can be confident that the retaliation claim will soon follow. Even if the negative decision on the promotion was entirely legitimate, your firm still will have to explain why it let the accused make the promotion decision and articulate how that person was able to divorce him- or herself from the underlying accusations of discriminatory conduct.
Abusing PTO Policies, Quirky Question # 60
Quirky Question # 60:
We are having trouble managing exempt employees’ paid time off (PTO). Our current policy allows new employees to begin earning PTO right away, with the potential to earn up to 120 hours of PTO per calendar year. PTO that is earned but not used is paid out or carried over at the end of each calendar year.
The problem we are having is that certain exempt employees know that they only need to work for fifteen minutes or so to be paid for an entire day. These employees will spend fifteen minutes or so “working” while out of the office for personal reasons. As a result, at the end of the year, these employees tend to receive a larger payout / carry over than others even though they are out of the office just as much (if not more) than their fellow exempt employees. What can we do to curb this problem?
[Quirky Question No. 60 is another one of our West Coast questions, this one posed to the lawyers in our firm's Anchorage, Alaska office. Wendy Leukema, who has addressed other Quirky Questions posed to her and her colleagues in Anchorage provides her analysis below. Note that Wendy's analysis is not dependent on statutory or common law unique to Alaska; rather, she analyzes this inquiry from the perspective of the federal statute now causing such anguish to employers and such joy to the plaintiffs' employment bar, the FLSA.]
Wendy’s Analysis:
Once again, as the saying goes, “no good deed goes unpunished.” Your existing PTO policy is very generous – perhaps too generous – and certain employees are taking advantage of the fact that, under federal wage and hour law, their salaries may only be reduced for full-day absences due to personal reasons. The good news for you is that under the Fair Labor Standards Act (FLSA), employers with bona fide benefits plans may reduce an employee’s PTO for partial day absences due to personal reasons, including illness and injury, so long as the employee’s actual pay is not affected. This is true even if the employee is able to cash-out his or her earned but unused PTO at the end of the year. Webster v. Public School Employers of Washington, Inc., 247 F.3d 910, 917 (9th Cir. 2001) (explaining that a reduction in paid leave does not affect an employee’s exempt status under federal law, even if the employee is able to convert unused leave time to cash). Thus, an employer may reduce an exempt employee’s PTO for tardiness or absences due to personal reasons without jeopardizing the employee’s exempt status. Barner v. City of Novato, 17 F.3d 1256, 1261 (9th Cir. 1994).
Where an exempt employee has exhausted his or her PTO or has not yet earned enough PTO to cover the absence, employers with bona fide benefit plans have several options. With respect to full-day absences covered by the policy (e.g., vacation, illness, or injury), employers may reduce an employee’s pay or require the employee to carry a negative leave balance. 29 C.F.R. 541.602(b)(2); DOL Opinion Letter dated September 14, 2006. With respect to partial day absences, employers may only require the employee to carry a negative leave balance. Under no circumstance, may an exempt employee’s actual pay be reduced for partial-day absences. See DOL Opinion Letter dated January 7, 2005. As explained by the DOL, “payment of the employee’s guaranteed salary must be made, even if an employee has no accrued benefits in the leave plan and the account has a negative balance, where the employee’s absence is for less than a full day.” Id.
To qualify as a bona fide benefit plan, the plan or policy must provide a reasonable amount of paid sick leave for exempt employees, be communicated to eligible employees, and operate as described in the plan or policy. DOL Opinion Letter dated September 14, 2006. In addition, the plan must be administered impartially and its design should not reflect an effort to evade the requirements that exempt employees be paid on a salary basis. Id.
Based on the information you provided, it appears as though your plan would more than meet these criteria. The DOL has approved as “bona fide” leave plans providing for at least five days of sick leave per year. These days do not have to be designated solely as sick days; the DOL has approved as “bona fide” leave plans which provide for one day of sick leave and five days vacation, where the employees were (1) able to use their vacation days as additional sick days, (2) able to take leave in half-day increments, and (3) not required to use leave if out for only an hour or two due to illness or a doctor’s appointment. The DOL has also approved as “bona fide” leave plans that require one year of service prior to eligibility for paid sick leave. Accordingly, under such a plan, the employer could reduce an exempt employee’s pay for full- day absences taken for illness or injury prior to the employee’s one year anniversary date.
Before you begin making partial day deductions from exempt employee’s PTO, however, we recommend that you revise your policy to permit such deductions and that you communicate these changes to your exempt employees. It is far preferable to communicate these types of policy changes in advance, rather than simply making retroactive deductions from a benefit to which your employees believed they were entitled.
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