Was FMLA intermittent leave bogus? Boss thought so

by on January 13, 2010 · 0 Comment POSTED IN: HR Info Center

The raucous chatter of the machines on the shop floor hushed as supervisor Phil Schwab ushered Betsy Morris into his office and shut the door.

Betsy felt uneasy. “I hope this won’t take too long. I need to get back to my machine.”

“You won’t have to worry about that any more, Betsy,” Phil said. “We’re terminating you, effective immediately. I’ve arranged to have your final pay ready down in the Payroll department.”

“What!” Betsy exclaimed. “I’ve always tried to do the best job I could. What have I done wrong?”

Stan stood his ground. “We seem differ on what ‘doing the best job’ means, Betsy. Making personal calls on company time doesn’t qualify. It is against company policy.”

Was it a smokescreen?

“Come off it, Stan,” Betsy replied. “That’s a smokescreen. The real reason is the FMLA intermittent leave I have been taking for anxiety and depression, isn’t it?”

Stan leaned forward. “Your FMLA intermittent leave costs the company money. That lathe needs to run 24/7 to meet our quotas. That’s why I’ve moved you to different machines after each family medical leave. It’s not personal, it’s business.”

Betsy’s eyes narrowed. “Ever since I started taking FMLA intermittent leave you’ve been on my case. Those other machines are harder for me to operate. You’re punishing me!”

“No, Betsy,” Stan replied. “We have a business to run. I can’t have you coming in late and leaving an hour early when you feel like it.”

“And when I wanted to use paid vacation time, you insisted on 30-days’ notice,” Betsy said, “that didn’t begin until I began taking FMLA intermittent leave.”

“Well, you look fine to me,” Stan said. “Besides, everybody knows that your time off has more to do with your personal needs than medical necessity. It puts the company in a bind.”

“You just earned yourself a lawsuit, Stan,” Betsy huffed. “I’m entitled to take FMLA intermittent leave, and you know it.”

Betsy sued the company and her supervisor for violating the Family Medical Leave Act by escalating retaliation against her.

And she won. A jury and district judge awarded Betsy over $215,000, plus attorney’s fees. The jury found moving Betsy to more difficult machines, and requiring advance notice to use vacation time, showed escalating retaliation aimed specifically at Betsy. Firing her for personal phone calls was a cover up for discrimination after she began taking FMLA intermittent leave.

Management Lessons

Few workplace issues generate more emotions and questions than FMLA intermittent leave. Intermittent leave is easy to abuse, and managers find it very disruptive. Stan probably had no doubt Betsy was malingering. But he acted rashly. Here’s what to do if you think someone’s cheating:

  • Require medical re-certification (at the employee’s expense) every 30 days, or even more often if you think someone’s really abusing the system.
  • Demand that employees make a “good faith” effort to give advance notice to minimize business disruption.
  • Work with HR from the get-go to make sure FMLA intermittent leave rules are followed closely and there’s no hint of retaliation.

Cite: Hite v. Vermeer Manufacturing Co., No. 05-2297, 8th Cir., 5/9/06

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