Retaliation and FMLA law

Retaliation is one of the biggest issues in FMLA today. Here are some obvious cases of retaliation against employee’s who had taken FMLA leave.

FMLA law: Was discharge retaliation for helping a colleague?

Supervisor Al Hanson called Chuck May into his office and cut right to the chase: “You’re fired Chuck. You missed two shifts, you entered a facility you shouldn’t have been in and your performance has been poor.”

“This wouldn’t have anything to do with my father, would it?” said Chuck. Chuck’s father had been fired recently as well, and he sued claiming his rights under ADA, ADEA and FMLA had been violated. Chuck had cooperated with his father’s attorney, providing information that hurt the company.

“This has nothing to do with that case,” said Al.

‘It’s retaliation, and it’s against FMLA law” said Chuck. “Other guys have done worse things than I’ve done, but they haven’t gotten fired. You guys are famous for giving slaps on the wrist. And I’ll bet a jury would see it my way.”

Chuck sued his employer for retaliation. Did he win?

The decision

Yes. Chuck prevailed in court.

The ADA, ADEA and FMLA law all contain provisions protecting employees from retaliation when they cooperate with other employees who have filed lawsuits against the company.

In other words, under FMLA law, Chuck had engaged in protected activity.

In reaching its decision, the court said, “We also believe that Chuck’s perception of illegal retaliation, that is, his perception that he was fired because his employer thought he was engaged in protected activity – even if he wasn’t actually doing so – presents a valid legal claim.”

Shortcomings were real

No one disputed that Chuck had entered a security zone that he wasn’t supposed to enter, or that he had racked up a number of warnings for lateness.

But Chuck had documentation showing that he’d been guilty of infractions many times before his father had been fired – but his job wasn’t in jeopardy then. Also, Chuck showed that other employees had erred like he had, but they hadn’t been fired.

It wasn’t until Chuck’s father filed his lawsuit for ADA, ADEA, and FMLA law violations that the company began holding Chuck to a higher standard than it had before.

The supervisor, Al, needed to ask himself a tough question before taking an adverse action against Chuck: “Am I doing this because Chuck deserves to be fired? Or is my judgment influenced by the fact that Chuck was disloyal to the company?”

Cite: Fogelman v. Mercy Hospital, Inc., U.S. Court of Appeals, No. 00-2263, 3rd Cir. Fictionalized for dramatic effect.

Employee fired for non-existent FMLA law violation

Norton-Alcoa Proppants (St. Louis, MO) had to pay a $305,000 award to an employee fired by his supervisor for allegedly failing to return after an FMLA leave.

After the employee suffered a work-related injury that resulted in episodes of neck pain, he went on short-term disability.

But when the pain persisted, he applied for and was approved for family medical leave under FMLA law.

The jury made the award when it found that his supervisor fired him, even though he returned as soon as he received a medical release from his doctor.

Good documentation is key to FMLA law cases

Supervisor Steve Krebbs had planned to lay off Pete Wentworth on Friday. But midweek he collapsed and needed open-heart surgery, which put him out of work for months.

That put Steve in a bind. He had no choice but to grant Pete FMLA leave.

When Pete returned to work 12 weeks later, he expected to be placed in the same or an equivalent position, as FMLA law states he had to be. Instead, he was fired.

“You’re firing me because I had to take an FMLA leave,” he accused Steve.

“That’s not true,” Steve replied. “I’d planned to let you go the same week you had your heart attack.”

“But I just had a performance appraisal, and you never said I was having problems.”

“Look, I’m sorry, but business is bad, and I can only keep my best people”.

Peter sued the company for violating FMLA law. Did he win?

The decision

Yes. A jury awarded Pete over $60,000 in damages. And a court of appeals upheld this award, ruling there was convincing evidence that the company made the firing decision while Peter was on leave.

The company lost this case for several reasons. First, performance appraisals didn’t indicate that Pete was falling short of company expectations.

Second, there was no documentation showing that after the appraisals there had been any warning that Pete would be terminated.

Finally, the termination documentation lacked any indication as to when it was completed.

All three of these points made it appear that Pete was fired for taking FMLA leave.

What this case reinforces, of course, is the need for complete and accurate performance- appraisal documentation.

Every appraisal should clearly outline the employee’s true job performance. If you gloss over problems just to be kind or to make the appraisal process easier, the documents will be useless if you later need to terminate the employee.

Nero v. Industrial Molding.