FMLA compliance failures mean big lawsuits

Employees on FMLA leave don’t have different discipline standards.

As senior production-control specialist, Don Tremont’s work affected every department.

So when Don went on FMLA leave for three weeks to care for his mother, problems developed everywhere.

Then, just before he was due back, Don notified Supervisor Pete Natase that his father had Alzheimer’s and he wouldn’t be returning to work until he could find someone to care for him.

That was more than Pete could stand. As of three days ago, Don became entitled to another 12 weeks of leave. Where would it end?

A PERFORMANCE ISSUE?

“We have the right to expect employees to be on the job and to give them poor performance reviews when they’re not,” he insisted when he discussed the problem with Ken Bradley, another supervisor.

“Wouldn’t that be out of FMLA compliance?” Ken wondered.

“Only if we just apply it to Don. I’m talking about applying it to everyone.”

That’s what Pete did, and on Don’s first day back at work Pete called Don in and fired him for poor performance.

ABSENCES COVERED

“All those absences were covered by FMLA leave,” Don argued. “You can’t fire me for exercising my rights.”

“Who said anything about absences or FMLA leave. I’m firing you for poor performance, just like our policy says.”

Don sued the company, charging FMLA compliance violations and retaliation, and the company argued that Pete had the right to enforce performance standards that had nothing to do with FMLA compliance.

How the court ruled

The company’s argument was thrown out. Their contention that all employees were treated this way was exposed as bogus.

He had to admit that Don was the only employee who had been terminated for “poor performance” under those circumstances.

Ruling that it was a clear case of retaliation and a major violation of FMLA compliance, the judge awarded Don $12 million.

Schultz v. Advocate Health and Hospitals