How an HR team used FMLA guidelines to win an "adverse action" lawsuit

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

FMLA guidelines don’t prevent you from terminating an employee returning from FMLA leave

Some managers are afraid to make any unpopular employment decision after an employee returns from FMLA leave. They shouldn’t be – as long as they’ve complied with FMLA guidelines and have kept thorough records.

In this case, an employee was terminated after she failed to report to work after leave.

She didn’t return her calls

The employee didn’t return her boss’s telephone calls, she failed to provide an FMLA form from her doctor requesting additional leave and she didn’t respond to a written request to make contact or be terminated.

The employer – confident that the employee had received the calls and the letter, but had chosen to flout company policy – fired her.

The employee sued. Her claim: She’d been fired in retaliation for taking FMLA leave. During her testimony, she claimed that the retaliation had begun after she asked for leave under FMLA guidelines, but before she took it. Specifically, she claimed she’d been denied vacation in retaliation for having requested FMLA leave.

How HR won this case using FMLA guidelines

Fortunately for the employer, HR had maintained a written record of her vacation request and the discussion that followed: True, she’d been denied a four-day vacation at Christmastime. But she hadn’t been singled out for that. There were other people who’d been denied holiday-season vacations.

Plus, she’d been told she could take two days off if she could get someone to cover for her – which she did.

That didn’t look like retaliation to the judge.

HR’s documentation proved that the employee’s case lacked merit. Without a written record of her vacation request, the mere time-sequence of events might have made it look as though she’d been denied a vacation because she requested FMLA leave.

Remember, FMLA guidelines don’t protect an employee from any adverse action that would have happened had she not requested FMLA leave.

Cite: Krauss v. Catholic Health Initiatives.

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