Use caution when terminating someone who is on FMLA leave or has just returned to work following FMLA leave. The timing alone might trigger a lawsuit.
If you have a solid business reason for terminating the employee, you will probably win in the end, but that victory may still cost you thousands of dollars in legal fees and lost time.
Recent case: Victor, who worked in customer service, fielded calls from customers who wanted to cancel their cable TV service. His job was to persuade them to reconsider.
His employer had a policy granting FMLA leave to new fathers so they could bond with their children. They could take leave in weekly increments from one to 12 weeks.
Victor claimed that when his wife gave birth, he asked for two weeks of FMLA-protected leave. But company records were unclear on exactly how much leave he had requested.
Sometime during the first week Victor was out on leave, a supervisor reviewed recorded customer calls and concluded that he had not been performing up to standard. Victor was told to come in for a meeting.
When he arrived, he was informed that he was being terminated for poor performance.
Victor sued, alleging interference with FMLA leave and retaliation for taking leave.
The company countered that he had been fired for legitimate problems with his performance.
The court said the case could go to trial, since the timing alone was suspicious. It also said that fact that the employer hadn’t fired him for similar call problems earlier could be used as evidence that the call problems were an excuse to terminate him for taking FMLA leave. A jury will decide the case. (Fuentes v. Cablevision, No. 14-CV-32, ED NY, 2016)
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