Supervisor’s take-home: Yes, you can fire or discipline workers while they’re on FMLA leave. Just make sure you can justify your decision.
What happened: While a female staffer was on FMLA leave, her employer decided to initiate a restructuring process that would lead to the elimination of six positions.
To determine who’d be on the chopping block, managers examined three years’ worth of performance ratings, test scores and disciplinary records for all 16 employees.
What people did: Because the woman ranked below her coworkers based on the cutback criteria, she was laid off. But here’s the catch: The woman was still out on FMLA leave when the termination decision was made. And right before the staffer had gone on FMLA leave, her manager had given her flowers and a thank-you note because she’d done a good job with one assignment.
Legal challenge: The woman sued for FMLA retaliation. She said that the timing of her layoff – while she was still on leave – proved ill intent. She contended that the low scores she received under the layoff criteria were fabricated, pointing to the flowers and thank-you note that she’d received as proof she was a good performer.
Result: The company won. The court ruled that the woman wasn’t retaliated against for taking FMLA leave.
The judge said that the employer implemented a rigorous process that focused on performance in deciding whom to target for dismissal. The court didn’t put much weight on the thank-you note and the flowers that the woman had been given as proof that she was doing a good job. The objective criteria used for the layoff showed that she didn’t stack up well against her coworkers who weren’t let go.
The skinny: Courts usually look favorably on companies that can point to a rigorous, systematic process for reducing their workforces.
Cite: Button v. Dakota, Minnesota and Eastern Railroad Corp., U.S. Court of Appeals 8, No. 19-1398, 6/30/20.
(From the Sept. 11, 2020, issue of HR Manager’s Legal Alert for Supervisors. To download the current issue of the publication right now, please click here.)