FMLA law: FMLA leave and performance plunge
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FMLA law: FMLA leave and performance plunge

When is it against FMLA law to fire a non-performing employee?

Terminating an employee while on or returning from FMLA leave is a brave step. The legitimacy of such discharges is heavily debated in FMLA law. Here are two instances of tricky FMLA law situations—one that ended in the favor of the company, and the other in the hands of the employee.

Against FMLA law, supervisor linked FMLA leave to performance plunge

This performance review is outrageous,” said Michele DeSantis, a team leader. “How did I go from top ranking to the second lowest in one year?”

“You tell me,” said Frank Cotter, her supervisor.

“I have an idea,” said Michele. “I took family medical leave four times last year for my anxiety disorder.”

“You misfilled a customer order,” said Frank. “People could have been hurt by that one.”

“I’ve made mistakes before,” said Michele. “But I never got burned like this on my performance review.”

“Face it, you had a bad year,” said Frank. “And every time we tried to address the performance problems with you, you took another week of FMLA leave.”

“So it is about FMLA,” said Michele. “That’s why you took me off the budget committee. That’s why you removed my scheduling responsibilities.”

“You weren’t here and we needed someone to do those tasks,” said Frank.

“It’s a demotion, and it’s against FMLA law” said Michele. “I’m quitting. You’ll be hearing from my lawyer.”

Sure enough, Michele sued for retaliation related to her taking FMLA leave. The company asked for a dismissal. Did it get one?

How the court ruled

No, the company was unable to get the case dismissed. Michele will get to tell her story to a jury. The company will likely settle.

The supervisor’s mistake: He linked Michele’s drop in performance to her taking FMLA leave. So the performance review and the duty changes looked like adverse actions related to FMLA leave. The court didn’t want to assess whom to believe, so they left it up to a jury to decide.

When reviewing workers or changing duties after FMLA, don’t discuss your frustrations with the worker’s absence because of FMLA leave.

Focus exclusively on the worker’s behavior and the company’s performance goals. If the worker brings up the leave, steer the conversation back to performance.

Cite: Collier v. Target, No. 03-1144, D.Del.

Fired the day he got back from FMLA leave

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?

How the court ruled

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 law 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 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 leave or because you found someone better in the person’s absence – 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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