October 02, 2023

FMLA Snarky Remarks Create Sparks

When an employee failed to report for work nine (9) minutes into her shift on her first day scheduled back from 12 workweeks of FMLA Leave, she was fired for job abandonment. Her reply? She sued for FMLA interference and retaliation. The trial court found in the employer’s favor. On appeal, the 5th U.S. Circuit Court of Appeals (covering LA, TX, and MS) decided to reverse that decision and sent the case back for reconsideration.

No surprise, some facts are in dispute. The former employee claims that during a call while she was on FMLA leave, her manager was angry and threatened her job. The manager says that during that call, the employee said she was not going to return to work. Each denies the other’s claim. The parties do agree that the HR Coordinator denied her request to use some of her vacation time to extend her FMLA leave, and she was scheduled to return the day after her leave expired.

Tips From the Court.

  • Just because the employee had exhausted her FMLA leave on the day she was fired does not preclude an FMLA retaliation claim. “The FMLA’s protection against retaliation…encompasses the employer’s conduct both during and after the employee’s FMLA leave.”
  • The employee was fired, “the day after [the employee’s] FMLA leave expired, and indeed [nine] minutes into the start of her work-shift on the first day she was supposed to return…” suggesting this “temporal proximity clearly supports a causal connection…”
  • The morning of the firing when the manager contacted the HR Coordinator to let her know the employee failed to report for work as scheduled, the HR Coordinator replied, “Great! I was hoping she wouldn’t come in. Let’s term her.” (That’s the snarky remark).
  • The employer failed to follow its own policy. The court noted, “failure to show up for work on one day does not meet the [employer’s] personnel manual’s definition of “job abandonment,” which requires three consecutive days of unexplained absence.”

What about the interference claim
? It seems that during the trial the former employee advised the court that her complaints regarding the employer’s “interference” were related to her claim of retaliation. Thus, it was only the latter claim that the court decided. What might the outcome have been otherwise? Remember, the FMLA gives an employee the right to be reinstated to the job the employee had when the FMLA leave began. She was not reinstated. What do you think the outcome would have been? Who wants to be the test case?

Lessons Learned.

  • This is not the first time that snarky remarks have gotten an employer into trouble. Check out another FMLA case here.
  • Speak and act with respect and civility. Snarky remarks do not belong in the workplace and particularly not when spoken by managers or HR.
  • Follow your policy. And, if you are not going to then have a bona fide business reason for not doing so.
  • Talk to your company’s legal counsel. When an employee fails to call in or report for work, consider that job abandonment as a resignation rather than a discharge. It may be a subtle nuance but can have implications you can use for your defense, including for unemployment insurance claims.