Where does FMLA law stand on employee misconduct?
-Fired for making bomb threat, not for taking leave under FMLA
The law says acquitted of the crime, worker’s firing was nevertheless legitimate Somebody called 911 and made a bomb threat. Emergency officials alerted the target of the threat – FMC Technologies – and traced the call to a telephone inside the facility.
Subsequently, three individuals identified the voice on the 911 tape as Robert Bickley, a welder at FMC.
Bickley was promptly arrested and suspended without pay pending the results of a police investigation. Shortly after that, he was discharged.
Next, Bickley was indicted by a grand jury on a charge of inducing panic. However, a jury acquitted him.
Prior to the bomb threat, Bickley had taken FMLA leave for treatment of a kidney condition.
After his acquittal, Bickley tried to get his job back, but he was turned down. He sued FMC claiming his discharge was in retaliation for taking family medical leave, and was against FMLA law. After all, he argued, he was innocent of making the bomb threat, so his dismissal must have been against FMLA law. But he was wrong.
Just because Bickley had been acquitted of the crime didn’t mean that he was fired in retaliation for taking FMLA leave.
Bickley’s claim failed because he couldn’t produce any evidence showing that he was discharged for any reason other than the bomb threat.
And the fact that he’d been acquitted of the crime had no bearing on the court’s ruling.
Cite: Bickley v. FMC Tech, U.S. District Court, Northern District of Ohio, No. 3:02CV7202, 6/5/03.
Worker fired for making threats, but employer liable for FMLA law violations
His inappropriate histrionics didn’t get his employer off the hook with the FMLA
The law says that if a worker flips out and threatens his boss, his employer may fire him – even if he recently took FMLA leave. But make no mistake: If the case goes to court, the judge will consider events that triggered the tantrum. And the worker’s antics won’t get his employer off the hook in the event that FMLA law was broken.
Charles Jordan, a U.S. Postal Service employee, took 60 days of FMLA leave for a variety of psychological disorders.
When he returned to work, he was forced to rebid for his own job. Then, before the bidding was complete, he was involuntarily transferred.
The news of his transfer so infuriated Jordan that he broke down and threatened his supervisor. He was fired on the spot.
Jordan accused the USPS of violating his rights under FMLA law. The requirement that he reapply for his own job was in retaliation for taking leave, he argued in his lawsuit. After all, he claimed, no one who didn’t take FMLA leave had to jump through that particular hoop.
Before the case got to court, Jordan apologized for making the threat, and the USPS agreed to reinstate him with back pay and benefits.
Still, the court handed Jordan an additional award on top of his back pay. In reaching its decision, the judge noted that while Jordan had certainly overreacted to the transfer, the transfer was against FMLA law.
Cite: Jordan v. U.S. Postal Service, U.S. Court of Appeals, 10th Circuit, No. 02-5196, 8/20/04.
FMLA law: ‘Work’ and ‘job’ not the same
An employee on medical leave may indeed be capable of holding down another job while still qualifying for protection at your organization under FMLA law.
One day on the shop floor machinist Dean Conrad flipped out: He hoisted a 30-pound metal unit above his head, threw it to the floor, screamed at the top of his lungs, banged walls and argued belligerently with managers.
Several employees escorted Conrad to Eaton Corporation’s HR department where he took – and passed – a voluntary substance abuse test.
‘No work until further notice’—FMLA law violation?
Conrad was told he was a threat to the workplace and ordered to leave the building. He went home, contacted a psychiatrist and put himself into treatment.
Conrad’s employer informed him of his FMLA rights. His doctor wrote a note saying “No work until further notice.” After two weeks of FMLA leave, the employer informed Conrad he’d be terminated in three weeks unless their concerns about him being a danger to the workplace were satisfactorily addressed.
Conrad’s psychiatrist told the employer Conrad wasn’t yet ready to return to his former job. But, according to the psychiatrist, since Conrad’s stress had to do with his employer, he might be able to work elsewhere.
A serious health condition?
Based on that information, the employer determined Conrad had no serious health condition and terminated his employment. Conrad filed an FMLA law suit.
Finding in Conrad’s favor, the court wrote, “Considering the purpose and intent of the FMLA, the fact that Conrad could perform his job functions at some hypothetical job that did not exist is irrelevant – rather the inquiry is focused on whether Conrad was able to perform his job functions at Eaton.”
As this case shows, employers should think long and hard before taking any employment action against someone on medical leave even if they “look fine” or have their doctor’s written permission to work somewhere else.
Cite: Conrad v. Eaton Corporation.
Could violent worker demand leave under FMLA law?
“Violence against a co-worker is a firing offense,” HR director Carla Waterman told Philip Daniels. “Everybody who was there said you charged Sheldon Ames and threatened to break his bones.”
“I wasn’t in my right mind,” Philip said. “I was having a panic attack.”
“That’s no excuse for what you did,” Carla said sternly.
“It is too an excuse, and a good one,” Philip said. “I was sick, and I wasn’t responsible for my behavior.”
“Did you tell anybody you were sick beforehand?” Carla asked.
“A week ago I told Jim Stewart I was sick and he said I could go to the doctor if I needed to,” Philip said, referring to his supervisor.
“So did you go?” Carla asked.
“No, I started feeling better,” Philip said. “But then, that one morning, I felt all panicky and woozy again. I told Jim I had to go home.”
“But as I understand it, you didn’t go home,” Carla said. “Instead you drove over to the Maplewood plant to settle some score with Sheldon.”“He has been riding me for years, and I think he’s partly responsible for these attacks I have,” Philip said. “Just thinking about him makes me all shaky. I wanted to tell him to lay off.”
“But you did more than tell him,” Carla said. “You charged him, and three men had to hold you back. I’m sorry, I have to terminate you for your own safety and everybody else’s.”
“You should be giving me FMLA leave instead of firing me,” Philip said. “I’m not a well man.”
After his termination, Philip sued for interference with his right under FMLA law.
Did he win?
No, Philip didn’t win. The court threw out his FMLA law suit.
The court said Philip didn’t notify the company that he might have a serious health condition entitling him to leave.
When Philip first talked to Jim, he didn’t give the supervisor any idea what was wrong. He just said he wasn’t feeling well.
Later, on the day of the altercation, he didn’t seek medical assistance after leaving work but instead drove off to confront the man he held responsible for his panics.
“It was this deliberate and aggressive act that yielded his termination, not his panic disorder,” the court said.
Workplace violence is an employer’s worst nightmare. You’re right to insist that co-workers refrain not only from attacking each other, but also from making threats. Threats can lead to physical violence, and your liability may be huge if somebody is hurt.
Fortunately, as this case shows, FMLA law says you don’t have to let a worker invoke a need for medical leave as an excuse for violent behavior.
The supervisor might, however, have headed off the FMLA law suit if he had pressed Philip for information the first time he complained of feeling ill. Philip might have revealed enough about his condition that the company would have decided to remove him from the workplace and get him help.
Cite: Anders v. Waste Management of Wisconsin, No. 05-3862, 7th Cir., 9/12/06. Fictionalized for dramatic effect.
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