Fired against FMLA law?
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Fired against FMLA law?

Isaac Kagan was feeling pretty good. It was his first day at the office after a 10-week FMLA leave for back surgery.

After his operation, Isaac had begun a course of physical therapy that got him back on his feet and feeling better than he had in years.

But Isaac’s sunny disposition faded on his first day back at work, when he was summoned to the HR department and fired.

‘One more instance…’

Isaac was shocked. He’d heard that it was against FMLA law for employers to fire workers as soon as they return from family medical leave.

“You’re wrong about that,” said Isaac’s supervisor, Jacqueline Lowe. Jacqueline reminded Isaac of several incidents that had occurred before he requested FMLA leave.

“Look at these incomplete reports you filed,” she said. “And here’s a list of clients who called to complain about you.”

Jacqueline showed Isaac the dates of the documentation. “All of this was before you told us you needed time off for your surgery.”

Jacqueline also produced a copy of a written warning that Isaac had received months before his leave. It stated that “one more instance” of poor performance would result in his discharge.

While Isaac was on leave, Jacqueline and another supervisor found a stack of work that he was to have completed, but hadn’t. This work was assigned before he took his leave, but after he received the “one more instance” warning.

Isaac claimed that his employer, against FMLA law, fired him in retaliation for taking family medical leave. The company argued that he would have been fired even if he hadn’t taken leave.

Did Isaac win his lawsuit?

The decision

No. Isaac’s lawsuit was tossed out of court. And he lost a second round when he appealed.

Isaac was fired the day he returned from FMLA leave. But his discharge was legal under FMLA law. Why?

Good documentation.

An employer may not fire a worker for taking FMLA leave. But a worker who would have been fired anyway can’t rely on FMLA law to save his job.

Reinstatement not absolute under FMLA law

The court noted that the company’s argument was strengthened considerably by the supervisor’s testimony. On the stand, the supervisor described a number of times that customers called to complain about Isaac. She showed the court work that Isaac had claimed was complete – but wasn’t.

And the supervisor showed the “one more instance” notice that Isaac had dated and signed.

FMLA law entitles eligible employees up to 12 weeks of unpaid leave annually for serious health conditions. It is against FMLA law for an employer to refuse to reinstate, or to discriminate against an employee who takes valid leave.

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.”

Is your documentation comprehensive enough to make a case in court?

Site: Ogborn v. United Food and Commercial Workers Local No. 881, U.S. District Court of Appeals, 7th Circuit Fictionalized for dramatic effect.

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