April 07, 2020

FMLA Faux Pas

This case was of particular interest to me as it involves HR Pros on both sides of the story: the one being fired and the one doing the firing. This case considered two claims available under the Family and Medical Leave Act (FMLA), which prohibits covered employers from interfering with an employee’s FMLA rights or retaliating against an employee for exercising those rights.

The Short Version. The employee was the Director of Benefits in the employer’s HR Department. While she was out on Family and Medical Leave Act, her employer reportedly found she had neglected her job duties (2,700 unanswered emails, bills that had not been paid, checks not cashed, and more). The day she returned to work, she was called into a meeting, told she was being put on administrative leave pending the outcome of the investigation, and fired 11 days later by the Chief HR Officer.  You know what happened next: she sued.

Interference. The employer’s position was that it did not interfere with her FMLA rights. She was granted all leave that she needed and returned to work. The court then reminded us that restoring an employee, “to a position only long enough to be fired does not amount to a meaningful reinstatement under the statute.”

Retaliation. To succeed, an employee must show animus or an intent to discriminate because the employee exercised FMLA rights. The court looked at the timing. “The protected act and the adverse employment action must be  very close in time to establish causation by timing alone.”

Lessons Learned. The court found the employer did state a legitimate, non-discriminatory reason for firing the employee – poor job performance. But, based on the timing; the fact that the employee never asked the employee for her side of the story; and prior “satisfactory” performance appraisals, the court found the employee raised sufficient factual issues that performance may have been a pre-text and not the real reason she was fired.  Oh, BTW, the court noted the employer had also posted the employee’s job as vacant while she was still out on leave!  One might call that a clue.

Final Note: The employee also claimed the employer violated the Americans with Disabilities Act (ADA) and discriminated against her based on her actual disability and its perception of her as having a disability. The court found in the employer’s favor on the ADA claims. But, at what cost?