Dismissing woman on FMLA leave violated FMLA regulations

by on March 16, 2009 · 0 Comment POSTED IN: HR Info Center

Progressive discipline and FMLA regulations

Before you dismiss someone who’s protected under FMLA regulations, be sure you can prove the firing isn’t related to the leave. Here’s a case where the employer couldn’t make that argument stick. She did get a warning, though.

A clerk at an automobile dealership was diagnosed with breast cancer. She requested a 12-week unpaid FMLA leave of absence. During the leave, the employer determined that the clerk had improperly trained her replacement.

This wasn’t the first time she’d failed to provide proper training. Prior to her leave, she’d been verbally warned about her failure to train junior-level clerks.When the clerk was fired two weeks before she was to return to work, she sued her employer for violating her rights under FMLA.

The employer argued that the clerk was fired for failing to perform her duties, and that she wasn’t entitled to special protection under FMLA regulations because of her leave.

A court found in favor of the clerk. She had many years of service, her employer failed to formally discipline her for earlier lapses and her job description had no emphasis on training. The court said that a jury could reasonably infer that she wouldn’t have been fired had she not taken FMLA leave.

Cite: Smith v. Difee Ford-Lincoln-Mercury, Inc., U.S. Court of Appeals, 10th Circuit, Nos. 00-6362 and 00-6363, 7/29/02

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