Court illustrates how HR pros can be personally liable for FMLA blunders

Heads up: The stakes have been raised on FMLA compliance for human resources professionals.  

That’s because an appeals court not only ruled that HR pros could be personally liable for FMLA violations, it also offered employees a simple blueprint for disgruntled workers to make such claims.

Took aim at HR director

Understanding why the court ruled the way it did will go a long way toward helping you and your company avoid falling victim to a similar fate.

The case was Graziado v. Culinary Institute of America, Garrioch. Garrioch was the HR director.

Here’s some background: When Cathleen Graziado, a payroll worker for Culinary Institute of America (CIA), took FMLA leave to care for her sons, the company questioned the validity of that leave.

In the communication that followed, the director of HR, Shaynan Garrioch, said Graziado’s documentation wasn’t sufficient. The company then set a deadline for Graziado to submit the proper documentation but, when she failed to do so, she was fired.

Following her termination, Graziado filed an FMLA interference and retaliation suit against CIA as well as Garrioch.

In its attempt to get the suit dismissed, CIA’s attorneys argued that Garrioch wasn’t an employer under the FMLA and couldn’t be held individually liable in the suit.

This argument seemed like a no-brainer, and a lower court agreed and dismissed this and the rest of Graziado’s claims.

FLSA tie-in

But on appeal, a court disagreed and sent the case to trial. What the appeals court said about the definition of employer is especially worrisome for HR and benefits pros.

In regards to the HR director’s individual liability, the court ruled the FMLA’s definition of “employer” – defined in the law as one who “acts, directly or indirectly, in the interest of an employer to any of the employees of such employer” – basically mirrors the definition under the FLSA.

In fact, the FMLA was initially adopted as an amendment to the FLSA. Because of these factors, the court said the test used to evaluate employers under the FLSA should be applied to FMLA cases, too.

So the court applied the FLSA’s control or “economic reality” test to the claim CIA’s director of HR was an employer and found two key reasons to support that claim:

  1. The director of HR controlled Graziado’s schedule and conditions of employment, and
  2. She had the power to fire Graziado.

Result: There was plenty of evidence the director of HR controlled Graziado’s FMLA rights from an employer capacity. Therefore, she could be personally liable for FMLA violations.

Doublecheck everything

The idea of HR and benefits pros being personally liable for FMLA issues is particularly alarming when you consider how often courts hand down pro-employee FMLA verdicts.

This ruling is yet another reason to doublecheck all FMLA decisions to ensure compliance – especially those involving termination – and always try to err on the side of caution.

In addition, employers may want to consider ramping up their FMLA training to stay safe.

Here’s what trashing resumes, applications can cost you

A recent settlement of an EEOC lawsuit is a powerful reminder of just how important it is to retain job seekers’ application materials — and what it can cost if you fail to. 

Last fall, HR Morning reported that Coca-Cola Bottling Company of Mobile, an Alabama-based subsidiary of Coca-Cola Bottling Co. Consolidated, was being sued by the EEOC.

The agency claimed that soda maker and bottler twice violated federal law when it refused to hire Martina Owes.

Specifically, the EEOC accused Coca-Cola of:

  • Sex discrimination. The EEOC claimed Coke violated the Civil Rights Act when it refused to hire Owes. It said the company hired two less-qualified men to fill vacant warehouse positions over Owes, despite the fact that she had all of the warehouse and forklift experience required for the positions.
  • Recordkeeping violations. The agency also claimed Coke violated federal recordkeeping requirements by not preserving all of the application materials related to those positions.

The agency sued only after attempts to reach a settlement through its conciliation process failed.

But, apparently, Coke had a change of heart while preparing its defense strategy. The EEOC just announced that it has reached a settlement with the Mobile bottling plant.

What’s it going to cost?

Coca-Cola has agreed to pay Owes $35,000 to settle all the charges against it.

The terms of the settlement also dictate that Coke:

  • cease from future discrimination
  • conduct annual anti-discrimination and anti-retaliation training of its Mobile employees for three years
  • develop new or revised anti-discrimination policies
  • create a new or revised written hiring process, and
  • designate a director-level employee to coordinate its compliance with anti-discrimination laws and compliance with the settlement decree.

What you must keep, and for how long

This case highlights the importance of retaining application materials.

Chances are when the EEOC starts snooping around for wrongdoing in your hiring process, it’s going to request all of your hiring materials — past and present. And you’d better be able to produce them, or expect the agency to file charges.

That brings us to the $35,000 questions:

  • How long do you have to keep application materials? The rule under the Age Discrimination in Employment Act is a minimum of one year. But if you’re aware the applicant is over 40, it’s smart to retain them for at least two years. This rule also applies to resumes, references checks and background check materials.
  • What about personnel and employment records? The EEOC requires you to keep them on file for at least a year.
  • Payroll records? Three years.

Now if your company is being charged — or you suspect it will be — with some form of wrongdoing, then you’ve got to keep all of these materials until the matter is resolved.

New FMLA poster issued by DOL: But do you have to use it?

The DOL just issued a new General FMLA Notice for employers to hang in their workplaces. 

The notice can be found here.

Now on to the big question: Do employers have to use it?

The answer: Employers covered by the FMLA must hang the new poster or stick with a pre-existing poster that outlines the same info.

In other words, you’re not required to swap out your current poster for the new one. But there are some reasons you may want to.

For starters, the new poster is organized in a much more reader-friendly way than the DOL’s last poster.

So if you’re not a fan of your current poster’s layout, this may be a more attractive option.

The requirements

Just to be safe, let’s recap the DOL’s regulations regarding the poster.

Employers covered by the FMLA must display in a conspicuous place — and keep displaying — a General FMLA Notice explaining the law’s protections and requirements, as well as how employees can file complaints of violations of the FMLA with the DOL’s Wage and Hour Division.

The notice — i.e., poster — must be:

  • prominently displayed where it can be easily seen by employees and job applicants
  • displayed even if no employees are FMLA eligible, and
  • provided to each employee. This can be done via an employee handbook distributed to all employees, guidance distributed to employees explaining benefits or leave rights, or a general notice to all new employees upon hire.

Electronic posting is permitted as long as it meets all the posting requirements otherwise.

If a significant portion of workers are not English-literate, the employer must provide the notice in a language in which those employees are literate.

Violations of the regulations can result in a civil penalty of up to $110 per offense.

New FMLA guidance

In conjunction with the new General FMLA Notice poster, the DOL also issued a brand new 76-page guide on administering the FMLA.

While the guide doesn’t impose any new requirements on employers, the guide’s purpose — much like the new poster — is to explain things in a more reader-friendly manner. It’s intended for employers.

Some of the highlights:

  • It includes flowcharts outlining the course of a typical leave request from beginning to end.
  • There’s a “Did You Know?” section that outlines some of the law’s lesser-known provisions.
  • Charts are included to help explain the medical certification process — i.e. What’s required.
  • It includes an overview of Military Family Leave.

You can grab the guide here.

Oops: This FMLA policy was missing something kind of important

It’s time to double-check that your FMLA policy and notices aren’t missing this critical, but apparently easy to overlook, piece of info. 

What is it? The 12-month period your company uses to calculate an employee’s remaining FMLA eligibility.

In other words, are you clearly articulating the date ranges you’ll use to add up how much of employees’ 60-day allotment they’ve used?

The Illinois Department of Corrections (IDC) didn’t, and the legal pickle it’s in can teach a lot of employers what happens when this piece of vital info is missing from your written FMLA policy and/or other documentation.

The IDC was sued by Michael Caggiano, a former corrections residence counselor at IDC’s Westside Adult Transition Center, after IDC terminated Caggiano for accumulating too many unexcused absences.

Caggiano had taken off to care for his ill mother and had requested that his absences count as FMLA leave.

He’d taken plenty of FMLA leave in the past for the same reason. Only this time, IDC claimed he’d exceeded his 60-day FMLA allotment, so his absences would need to go down as unexcused. That resulted in him accumulating more unexcused absences than IDC’s attendance policy allowed. So Caggiano was terminated.

Never told how it was calculated

Caggiano cried foul and filed an FMLA interference lawsuit against IDC. Among a few different arguments Caggiano states for why his FMLA leave was interfered where assertions that:

  • he was never formally told how his FMLA leave was being calculated or from what date the calculation started, and
  • he still had more than enough FMLA eligibility remaining to cover his unexcused absences.

IDC filed a motion for summary judgment with the court in an attempt to get Caggiano’s FMLA interference lawsuit thrown out.

It claimed Caggiano received all of the FMLA leave he was entitled to, and therefore he was no longer protected by the law. So he couldn’t sue for interference, IDC claimed.

IDC’s motion was denied.

The court said during the summary judgment phase of a case, “The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion.”

The party opposing the summary judgment motion was Caggiano, so the court had to view all the evidence in front of it in the light most favorable to him.

What was most favorable to him?

The big problem with IDC’s argument: It produced no evidence that had clearly articulated to Caggiano when its 12-month period for calculating FMLA leave began.

As attorney Jeff Nowak points out over at his FMLA Insights blog, the result of this was that the court calculated Caggiano’s leave in the way most beneficial to Caggiano. (Nowak also expounds on the benefits of always using the “rolling method.”)

And under the court’s calculation, Caggiano would’ve still had two weeks of FMLA eligibility to cover his unexcused absences.

As a result, the court determined, “the evidence is such that a reasonable jury could return a verdict for the nonmoving party [Caggiano].” So it’s sending the case to trial, where IDC will have to convince a jury it provided Caggiano with a clear explanation of how it calculated his FMLA leave.

Analysis: Clearly define your 12-month period

This lawsuit demonstrates how important it is to clearly define how you calculate leave — in both your general FMLA policy and your notices to employees.

In addition, it’s a good idea to provide written updates on how much FMLA leave employees have remaining. This is the only way to remove suspicions that an employee didn’t know what the official count was.

Was employee’s nap FMLA protected? How one court ruled

Scorned employees will cry “FMLA protection” for just about anything these days. The question is, when can the argument stick? 

The answer, unfortunately, is all too familiar: It depends.

All employers can do is look at what the courts are currently saying, and use their guidance to direct FMLA policies and procedures.

In the most recent case to cross our desks, an employer’s smartly crafted policies won the day.

Migraines caused her to miss work

The case involved Jodi Lasher, a registered nurse for Medina Hospital in Ohio.

Lasher suffered from severe, sometimes debilitating, migraine headaches. These migraines had caused her to miss work on several occasions, for which she was issued a written warning. The hospital’s management had even received complaints from employees that Lasher had “disappeared” from her unit to deal with her headaches.

Medina hospital did the right thing. It approached Lasher about exploring possible accommodations for her condition. Then, after determining that accommodations weren’t applicable to her situation, the hospital’s management team recommended that Lasher use intermittent FMLA leave to deal with her condition.

At this point, the hospital laid out a procedure that Lasher was to follow when migraine symptoms flared up — symptoms severe enough to prevent her from doing her job, that is. The procedure required Lasher to let the nurse operations manager on duty, or at the very least one of her colleagues, know when she needed to remove herself from her duties.

Lasher acknowledged that she understood this procedure, and she agreed to follow it in the future.

The hospital approved all of Lasher’s FMLA leave requests, including an occasion when she developed migraine symptoms during her shift.

‘Major infraction’

Fast forward months later, and Lasher had a migraine flare up while on duty. She then left a pregnant patient unattended without informing anyone.

She was then found sleeping in an adjacent vacant room.

The hospital labeled it a “major infraction” of its procedures. It said it created an employee, as well as a patient, safety issue. So it fired Lasher.

She then filed an FMLA interference lawsuit. In essence, she claimed her nap was FMLA-protected.

The hospital filed for summary judgment in an attempt to get Lasher’s lawsuit thrown out.

The court granted summary judgement in favor of the hospital, and tossed the suit.

It ruled that for Lasher’s FMLA interference claims to survive summary judgment, she had to show:

  1. she was an FMLA-eligible employee
  2. the hospital was an employer as defined under the FMLA
  3. she was entitled to leave under the FMLA
  4. she gave the employer notice of her intention to take leave, and
  5. the employer denied her FMLA benefits to which she was entitled.

Where Lasher’s claim fell apart was in satisfying the fourth element of that test. The court ruled Lasher failed to provide notice of her intention to take FMLA leave, despite an established procedure for providing notice that Lasher had agreed to follow.

The court then added:

“An employee seeking FMLA leave need not mention the statute expressly, but she must convey enough information to apprise her employer that she is requesting leave for a serious health condition that renders her unable to perform her job.”

Even using this somewhat lenient standard, Lasher’s actions fell short.

Case closed. Lawsuit tossed.

But before putting a bow on the case, the court pointed out some of the other facts the hospital had on its side. For starters, it had a track record of approving Lasher’s prior leave requests without fail. Plus, the hospital itself was the one to suggest Lasher apply for FMLA leave in the first place.

Both of those elements gave Lasher a pretty steep hill to climb to prove that the hospital intended to interfere with her FMLA rights.

Cite: Lasher v. Medina Hospital

Handling the tricky questions in FMLA intermittent leave

It’s a given: Intermittent FMLA leave is a giant thorn in the side of HR people everywhere. But not all intermittent leave requests are equal. Here’s a look at some of the most common scenarios, and how to handle them.

The FMLA allows employers some flexibility in granting different kinds of intermittent leave. Employees are entitled to take it for serious health conditions, either their own or those of immediate family members.

The law also allows use of intermittent leave for child care after the birth or placement of an adopted child, but only if the employer agrees to it. It’s the company’s call.

It’s not always simple, however.

If the mother develops complications from childbirth, or the infant is born premature and suffers from health problems, the “serious health condition” qualifier would likely kick in. As always, it pays to know the medical details before making a decision.

Eligibility’s not automatic

Companies can successfully dispute bogus employee claims to FMLA eligibility.

Consider this real-life example:

A female employee in Maine said she suffered from a chronic condition that made it difficult to make it to work on time.

After she racked up a number of late arrivals – and refused an offer to work on another shift – she was fired.

She sued, saying her tardiness should have been considered intermittent leave. Her medical condition caused her latenesses, she claimed, so each instance should have counted as a block of FMLA leave.

Problem was, she’d never been out of work for medical treatment, or on account of a flare-up of her condition.

The only time it affected her was when it was time to go to work.

Sorry, the court said. Intermittent leave is granted when an employee needs to miss work for a specific period of time, such as a doctor’s appointment or when a condition suddenly becomes incapacitating.

 That wasn’t the case here, the judge said – and giving the employee FMLA protection would simply have given the woman a blanket excuse to break company rules.

Cite: Brown v. Eastern Maine Medical Center.

Designating leave retroactively

In order to maximize workers’ using up their allotted FMLA leave, employers can sometimes classify an absence retroactively.

Example: An employee’s out on two weeks of vacation, but she spends the second week in a hospital recovering from pneumonia.

Her employer doesn’t learn of the hospital stay until she returns to work. But she tells her supervisor about it, who then informs HR. Within two days, HR contacts the woman and says, “That week you were in the hospital should be covered by the FMLA. Here’s the paperwork.”

The key here is that the company acted quickly – within two days of being notified of the qualifying leave.

The tactic’s perfectly legal, and it could make a difference in the impact FMLA leave time could have on the firm’s overall operation.

It’s also an excellent example of the key role managers play in helping companies deal with the negative effects of FMLA.

Using employees’ PTO

First, a no-no: Employers should never tell workers they can’t take FMLA leave until they’ve used up all their vacation, sick and other paid time off (PTO).

Instead, you can require employees to use their accrued PTO concurrently with their intermittent leave time. Employers can also count workers’ comp or short-term disability leave as part of their FMLA time – but in that case, employees can’t be asked to use their accrued PTO.

The transfer option

Companies can temporarily transfer an employee on intermittent leave, to minimize the effect of that person’s absence on the overall operation.

The temporary position doesn’t need to be equivalent to the original job – but the pay and benefits must remain the same.

And, of course, the employee must be given his old job – or its equivalent – when the intermittent leave period’s over.

A few restrictions: The move can’t be made if the transfer “adversely affects” the individual. Example: The new position would lengthen or increase the cost of the employee’s commute.

Such transfers need to be handled in such a way as to avoid looking like the employer is trying to discourage the employee from taking intermittent leave – or worse yet, is being punished for having done so.

Cooperation, please

Although FMLA is certainly an employee-friendly statute, employers do have some rights when it comes to scheduling intermittent leave. For instance, employees are required to consult with their employers about setting up medical treatments on a schedule that minimizes impact on operations.

Of course, the arrangement has to be approved by the healthcare provider. But if an employee fails to consult with HR before scheduling treatment, the law allows employers to require the worker to go back to the provider and discuss alternate arrangements.

Sometimes, it’s as simple as taking an employee aside and saying, “I know you’ve got to go to physical therapy. But these 10 o’clock appointments are really affecting work flow. Could you see about scheduling them for after work hours?”

The firing question

Yes, companies can fire an employee who’s on intermittent FMLA leave. Despite the fears of many employers, FMLA doesn’t confer some kind of special dispensation for workers who exercise their leave rights.

Obviously, workers can’t be fired for taking leave. But employers can lay off, discipline and terminate those employees who violate company policies or perform poorly.

When an employee on FMLA leave is terminated, the DOL decrees that the burden’s on the employer to prove the worker would have been disciplined or terminated regardless of the leave request or usage.

Reductions in force

When an employer has a valid reason for reducing its workforce, the company can lay off an employee on FMLA leave – as long as the firm can prove the person would have been let go regardless of the leave.

So companies should be prepared not only to prove the business necessity of the move, but to show an objective plan for choosing which employees would be laid off.

Misconduct or poor performance

Employees on FMLA leave – of any type – are just as responsible for following performance and behavior rules as those not on leave.

But companies that fire an employee out on FMLA will be under increased pressure to prove that the decision was based on factors other than the worker’s absence.

And courts might well pose employers a key question: Why didn’t you fire this person before he/she took leave?

That answer’s not always difficult. Many times, employers don’t realize how badly an employee was doing until they see the mess he or she has left behind.

The good news: A number of courts have upheld employers’ rights to fire employees on FMLA leave – even when the employee’s problems were first discovered when the employee went off the job.


Auto-termination policy was illegal, but employer’s actions weren’t: Court

Companies with automatic termination policies, policies that automatically terminate employees after they exceed a certain amount of leave time, have come under fire in recent years.  

Reason: Under the ADA, employers must engage in the “interactive process” to see if the employee on leave can still do his or her old job with some type of reasonable accommodation — and additional leave time may be considered a reasonable accommodation.

Salem v. Houston Methodist Hospital is a recent court case that centered around the idea of an automatic termination policy.

Here’s some background: Fatima Salem worked as a nurse and suffered from a number of medical and psychological conditions. Salem’s medical issues led to her requesting and getting approved for a 59-day leave of absence that was covered by the FMLA. Following her return from that leave, Salem took another leave of absence.

Then the problems occurred. According to Houston Methodist’s leave policy:

“[a]ll leaves of absence of any kind when combined cannot exceed six (6) months in any rolling twelve (12) month period, measured backward from the date the leave begins.”

Salem had asked her employer to make an exception to the auto-termination leave policy when she discovered she wouldn’t be able to return within the six-month time frame. However, Salem was unable to provide the company with any type of estimate as to when she’d be able to return to work. Because of the company policy and the fact no estimate of a return date was given, Houston Methodist denied the request and fired Salem.

EEOC takes over

Salem’s first move was to file a charge with the EEOC, claiming Houston violated the ADA by refusing to grant her leave request. The EEOC determined that Houston’s policy violated the ADA …

“… in that it deprives certain employees of a reasonable accommodation, dispenses with respondent’s obligation to engage in an appropriate interactive process and impermissibly relieves [the Hospital] of its burden to establish undue hardship as a defense to a request for a reasonable accommodation that would extend a leave beyond six months.”

Despite its stance on the leave policy, the EEOC was unable to conclude that Houston violated the ADA by terminating Salem. According to the agency, simply having a policy that violated the ADA wasn’t enough to prove that Salem’s ADA rights had actually been violated.

So then Salem took up her case against Houston with a district court. Her suit claimed that, among other things, Houston failed to accommodate her disability by not providing additional unpaid leave and retaliated against her request, which violated the ADA.

Houston Methodist fought to get the suit dismissed.

What the court said

In an unexpected turn of events, the court granted summary judgment for the company on all of Salem’s claims.

Although the court acknowledged that Houston only engaged in “minimal participation” of the interactive process with Salem, it didn’t change the end result: There was no evidence the reasonable accommodation Salem requested was a feasible reasonable accommodation for the company to make.

Without any evidence the extra leave time was a “feasible” accommodation for the company to make, the court was able to dismiss the failure-to-accommodate claim. And because Salem couldn’t prove that enforcing a six-month leave limit was a retaliatory action, that claim was dismissed as well.

Are auto-termination policies OK?

A pro-employer ruling in an ADA leave case is always welcome news for HR pros, but the company here actually was very lucky to end up in the position it did.

Reason: The EEOC found the hospital’s leave policy unlawful, and the court that ruled in the hospital’s favor did criticize its engagement in the interactive process.

What saved the company here was the fact that, by not providing an estimation of a return date, Salem was essentially asking for indefinite — not extended — leave as her accommodation. A number of courts have ruled that indefinite leave is not a reasonable accommodation under the ADA. Had she been able to provide a return date, this case could have turned out a lot differently.

To avoid leaving to anything to chance, employers should always fully engage in the interactive process whenever an employee requests additional leave as an ADA accommodation.

FMLA abuse: A lesson in standing up to it

Handling intermittent FMLA leave can be intimidating. Here’s a case that shows it pays to act decisively when you suspect the employee-centric regs are being abused.  

The story revolves around Mingyi Rowe, a flight attendant for United Airlines. She and her husband — also a United flight attendant — live in Colorado, but Mingyi’s parents and other relatives live in Taiwan.

Rowe suffered from migraine headaches and had used intermittent FMLA leave for several years — more specifically, on 78 different occasions between 2007 and 2011. All her absences were approved by United.

United allows employees to fly for free or at a reduced cost.

Rowe and her husband planned a multi-week trip to visit her family in Taiwan. United approved their vacation from March 2 through March 27, 2011.

In January and February of that year, the couple searched on United’s internal computer system to determine which flights were likely to have seats available. But they were looking for flights leaving Feb. 22 to Feb. 25 — as was later revealed through a search of the United website.

Ah, the old ‘sick uncle’ trick

Later, Rowe testified that she had received a call from her family in Taipei on the evening of Feb. 23, saying that an uncle had been taken to the hospital and was close to death. Rowe and her husband flew out of Denver for Taiwan Feb. 24.

There was another small problem: Mingyi was scheduled work a three-day standby shift beginning Feb. 27. But she said she developed a migraine on the flight to Taiwan, and called in sick Feb. 27 under pre-approved FMLA leave.

Later, when her supervisors questioned her about the absence, Mingyi said she had originally planned to return for her shift, taking a flight Feb. 26 — less than 12 hours after arriving in Taipei. Unfortunately, she hadn’t bothered to put herself on the standby list for the Feb. 26 flight.

United terminated Rowe on grounds that she had been dishonest, “falsely claim[ing] illness as the reason for her absence from work.”

An ‘honest belief’

Rowe sued, claiming she’d been fired in violation of the FMLA and the ADA.

The judge was not impressed. The undisputed evidence, the court said, showed that Rowe was discharged because [her bosses] did not believe her claim that she planned to return to Denver for her Feb. 27 shift when she left for Taipei on Feb. 24.

That disbelief was bolstered by the facts:

  • The flight Rowe said she intended to take out of Taipei on February 26 would have required her to leave Taipei less than 12 hours after she arrived
  • Rowe and her husband performed multiple computer searches for flights to and from Taipei for several weeks prior to their departure and up until the day they left, but neither she nor her husband ever searched for flights that would have returned Rowe to Denver for her three-day shift, and
  • Rowe never sought to place herself on a flight “standby” list for a flight that would have returned her to Denver for her shift.

In addition, the judge said it was not the court’s role to determine whether the employer’s “proffered reasons [for terminating an employee] were wise, fair[,] or correct, but whether [it] honestly believed those reasons and acted in good faith upon those beliefs.”

And United clearly believed in good faith that Rowe was being dishonest in her use of her migraines to dodge coming in to work, the court said.

Case dismissed.

Cite: Rowe v. United Airlines, Inc.

5 times it’s OK to fire an employee on FMLA leave

Of course, you’d never to fire someone for taking FMLA leave. But perhaps the termination had been in the works long before the person took FMLA leave. It’s still a sticky situation, but a court recently outlined when it’s safe to say goodbye to someone on FMLA leave. 

The danger is, obviously, FMLA interference and retaliation claims. You never want to make it look like the taking of FMLA leave was a motivating factor in the decision to terminate someone (not that it would be).

Still, an FMLA lawsuit may likely be forthcoming if you terminate someone while they’re on, or just returning from, FMLA leave. It’s kind of a go-to move for employee-side attorneys: “Oh, you were on FMLA leave when they fired you. That’s interference and retaliation.”

But courts will side with you if you can prove the employee, FMLA leave aside, had it coming — e.g., the person was embezzling money, harassing the secretary or lying to customers.

When it’s safe to cut the cord

The U.S. Court of Appeals for the Tenth Circuit recently highlighted five separate cases in which it threw out a worker’s FMLA lawsuit against an employer after finding “undisputed evidence that the employee in question would have been terminated even if FMLA leave had not been taken.”

In then pointed out the element each employer in those five causes had on its side that allowed the court to toss the claims against it. If you can prove one of these elements exist when weighing your decision to terminate an employee on FMLA leave, it’s generally safe to say “you’re fired”:

  • employee failed to comply with a direct and legitimate order from supervisors
  • there was overwhelming evidence of performance issues that predated the leave
  • employee had repeatedly been tardy and was non-compliant with absence policy on the date she was terminated
  • employee, prior to leave, had been tardy, absent from her desk, failed to timely pay invoices or update list of services received from vendors, and
  • evidence was unequivocal that the reduction-in-force decision had already been made before the employee took FMLA leave.

The court of appeals cited these while issuing its ruling in an FMLA interference and retaliation lawsuit brought against Tulsa Winch Inc. (TWI).

Fired after returning from leave

Paul Janczak was the general manager of Canadian operations for TWI when he took FMLA leave to recover from an auto accident.

Immediately upon his return from FMLA leave, Janczak was fired. He then filed an FMLA interference and retaliation suit.

The company tried to get his lawsuit thrown out claiming it was considering a reorganization of its management structure and eliminating Janczak’s general manager position prior to his taking leave.

As the court documents indicate, it does indeed appear as though the company had started evaluating whether or not to eliminate Janczak’s position prior to his leave.

But here’s where TWI’s case fell apart: The decision to eliminate the general manager position hadn’t yet been made prior to Janczak’s leave — thus leaving room for doubt as to whether or not his need for leave actually factored into the final decision to eliminate the position.

As a result, the court said Janczak’s interference claim should proceed to trial, where TWI faces either a costly court battle or settlement.

The court said in order for it to dismiss Janczak’s interference claims before a trial, TWI had to show that his termination would’ve definitely occurred regardless of his leave.

Takeaway: Don’t evaluate whether or not someone should be eliminated while he or she’s on FMLA leave. That’s a decision that must be made prior to the person’s leave — or well after, to enable enough time to pass for the resulting termination not to appear linked to the person’s FMLA leave in any way.

The retaliation claims?

Janczak’s retaliation claim, however, didn’t survive. Why?

The court noted that, typically, retaliation occurs after an employee has been restored to his or her position only to suffer an adverse employment action after that fact.

But in Janczak’s case, he was never restored to his prior position; therefore his claims fell under the interference theory.