Was employee laid off because he took FMLA?
February 4, 2009 by Sam NarisiPosted in: FMLA, In this week's e-newsletter, Latest News & Views, Terminations
Managers are normally the first line of communication with employees who request and take FMLA leave. And as a recent court case shows, careful communication is required to avoid costly lawsuits.
Here’s what happened:
An employee suffered a serious back injury. He requested two months of FMLA leave.
When he asked for time off, his manager allegedly warned him, “If you take that much leave, there will not be a job waiting for you when you get back.”
Nonetheless, he was allowed to take leave and was reinstated after two months.
Then, however, the employer underwent a company-wide reduction-in-force. The employee returning from FMLA had the lowest seniority in his department, so he was let go.
He sued, claiming he was laid off because of his FMLA leave. He pointing to the manager’s threat as his primary piece of evidence.
The court agreed with him and refused to dismiss the case.
In any other situation, the company may have escaped liability — after all, the employee was given leave, reinstated and chosen for the RIF based on objective, unrelated criteria. Normally, it wouldn’t have been hard to show the termination had nothing to do with his FMLA leave.
But in this case, the manager’s response to his initial request made all the difference for the judge.
Cite: Daugherty v. Sajar Plastics, Inc.
Tags: communication, FMLA requestion, manager, reduction-in-force
February 5th, 2009 at 7:22 am
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February 11th, 2009 at 12:29 pm
It is agreed that the manager erred when trying to discourage the employee from taking FMLA. Most line managers are more interested in filling their schedule and getting the job done, than the niceties of equal opportunity. That is why there are HR managers and upper management, who can review employment decisions to ensure they are fair, square, and legal.
It is interested that the judge’s ruling was not on the merits of the case, but a decision “NOT TO DISMISS.” This in itself is a punishment to the employer for having to pay the extended legal costs to defend their position.
February 11th, 2009 at 2:29 pm
I think what should have happened here is to train all managers/supervisors in how to properly address FMLA and/or other leave issues. The manager in our case could have referred the employee to HR instead of making such an uncalled for remark.
It’s exactly that kind of remark that gets employers into trouble. I personally have no sympathy for the employer in this particular case. The manager’s comment sounded like a threat to me. I feel the judge ruled quite fairly in this situation.
February 27th, 2009 at 6:31 pm
I am in a similar situation – I was laid off during a RIF in November 2008 and had the most seniority in my department. Since the RIF, my prior employer has now listed 5 new positions in the department that I was ‘reduced’ from. The DOL regulations state that it is unlawful to discriminate against employees who have used FMLA as a negative factor in any employment action [29 C.F.R. s825.220(c)]. Just as employees should not use FMLA as a fail proof measure to take advantage of leave, the employer should be equally reticent about using a RIF as a guise for FMLA retaliation.
March 6th, 2009 at 4:18 pm
I have a questions. Can an employee be laid off DURING FMLA leave? If so, where can I find this information under DOL.gov?
Thanks.