A friend in my executive forum raised a really tricky FMLA issue at our latest meeting.
Here’s what happened: His accounts payable manager unexpectedly announced that she needed 12 weeks of FMLA leave to care for her sick husband. To fill her role, the company was able to bring in the wife of a current employee who had lots of AP experience and just happened to be out of work. That’s the good news.
The bad news is that the replacement quickly discovered that the AP Manager had made numerous mistakes amounting to thousands of dollars of overpayments to vendors during the current fiscal year. She went back a little farther and found similar mistakes in previous years. “What I’m seeing,” she concluded, “is a pattern of incompetence.”
So, the solution is pretty simple, right? Fire the AP manager for poor performance the day she returns from FMLA leave. Or, better still, send her a termination notice right away.
That might work out, but then again it might not. The AP Manager would very likely go to a lawyer and claim that she was terminated because she took FMLA leave. The plaintiff’s attorney would point out that prior to his client’s taking leave, there was no documented record of her poor performance. It only came to light AFTER she took the leave.
You see the problem. If the AP Manager’s mistakes were egregious enough, you could probably make the case that you’d have fired her no matter what. But a good lawyer might be able to convince a judge or jury that the mistakes weren’t so egregious — “If they were such a big deal, why didn’t anybody even SEE them?” — and make it difficult to prove the firing was justified.
The problem in this case was that the Accounting department was asleep at the wheel. Nobody was paying attention to AP and documenting the shortcomings of the AP manager. That kind of negligence is a recipe for a lawsuit.
The FMLA makes it crystal clear that employers cannot punish workers for taking FMLA leave. That means you need to be very careful when you terminate, demote or cut the pay of a person who is taking, or recently took, FMLA leave. That said, you CAN assign the person to a different job, as long as it pays the same and isn’t perceived as lower-status.
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