When female employees take time off to recover from giving birth to a child and bonding with the newborn, is there potential liability if the employee does not receive a bonus or is penalized for failing to be as productive as other employees?  I have at least three lines of thought in response to this question.  First, beyond what the law requires, tribal employers should take the steps necessary to ensure that policies and practices reduce the potential penalties associated with taking time off for childbirth.  If the tribal employer can afford to extend pay benefits throughout some or all of the leave it will significantly reduce the impact of the childbirth penalty.

Second, to the extent that there is a negative effect of taking time off for the birth of a child, since childbirth can only be achieved by women, if there is a penalty (less pay, reduced status) is that a form of gender based discrimination.  I am not aware of whether the courts have addressed this question but on its face the issue generates some concern.

Third, if the tribal employer follows or meets the standards of the Family & Medical Leave Act (FMLA) what are the rules related to women taking time off under the FMLA? Under the FMLA, 29 C.F.R. section 825.215(c ), an employer might be able to withhold a bonus for failing to meet a target:

(c) Equivalent pay.

(1) An employee is entitled to any unconditional pay increases which may have occurred during the FMLA leave period, such as cost of living increases. Pay increases conditioned upon seniority, length of service, or work performed must be granted in accordance with the employer’s policy or practice with respect to other employees on an equivalent leave status for a reason that does not qualify as FMLA leave. An employee is entitled to be restored to a position with the same or equivalent pay premiums, such as a shift differential. If an employee departed from a position averaging ten hours of overtime (and corresponding overtime pay) each week, an employee is ordinarily entitled to such a position on return from FMLA leave.

(2) Equivalent pay includes any bonus or payment, whether it is discretionary or non-discretionary, made to employees consistent with the provisions of paragraph (c)(1) of this section. However, if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. For example, if an employee who used paid vacation leave for a non-FMLA purpose would receive the payment, then the employee who used paid vacation leave for an FMLA-protected purpose also must receive the payment.


This is yet another example where an employer can choose not to pay a bonus to an employee out on job protected leave under the FMLA if the employer follows a consistent policy when employees exercise their rights under other types of leave.  Said another way, if an employee does not get the bonus when the employee is out under the tribe’s leave of absence policy, the FMLA does not require payment of the bonus when the employee is out under the FMLA.  The takeaway:  Be consistent.

However, consistent with the theme of the initial response to this question (see above) even though the FMLA might not require payment of the bonus, should employers pay the bonus to mitigate against the risk that female employees will lose ground when taking time off to give birth.