Fired the day he got back from FMLA leave

by on March 18, 2009 · 0 Comment POSTED IN: HR Info Center

FMLA regulations allow terminations if the employee doesn’t meet corporate performance standards

Customer Service Manager Jane Marcel’s boss told her to cut customer complaints about service reps or she’d lose her job. At the top of her target list was Andy Brandon, who was returning this morning after a 10-week FMLA leave for back surgery.

Jane heard a knock on her door. “Hello Jane,” said Andy. “I’m feeling great and raring to go.”

“Andy, I have bad news for you,” said Jane. “You’re fired.”

“What!” exclaimed Andy.

Jane gestured toward a stack of papers. “You left all that work lying around before you took leave, even though I told you to complete it. We received several complaints from customers about you while you were gone. In your performance review a few months ago it said that ‘one more instance’ of poor performance and you’d be fired.”

“You’re retaliating against me for taking FMLA leave,” said Andy. “I’ll see you in court.”

Did Andy win his lawsuit?

No, Andy’s firing was deemed to be legal and his lawsuit was tossed out of court.

Why? In a nutshell, Jane had good documentation.

The court was influenced by several factors:

  1. Jane had warned Andy that “one more instance” of bad performance would result in his dismissal.
  2. On the stand Jane was able to read verbatim comments from customers proving that Andy was negligent in his work.
  3. Jane brought into court the stack of documents that Andy had failed to process before he took his sick leave.

FMLA regulations gives eligible employees up to 12 weeks of unpaid leave annually for serious health conditions, and makes it unlawful for an employer to refuse to reinstate, or to discriminate against employees who take valid leave.

In this case the court wrote: “The right to reinstatement is not absolute, however, for the statute does not confer benefits to which an employee would not be entitled had the employee not taken leave.”

Firing someone the same day they return from FMLA leave is a bold move. But as this case shows, as long as you can prove beyond doubt that the person was fired for performance reasons – and not in retaliation for taking FMLA leave or because you found someone better in the person’s absense – you can take action that’s in the best interest of the company.

Based on Ogborn v. United Food and Commercial Workers Local No. 881, U.S. District Court of Appeals, 7th Circuit

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