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FMLA leave-taker slipping? Fire away, with justification

by on
in Employment Law,FMLA Guidelines,HR Management,Human Resources

Of course, employees have the right to take protected FMLA leave. But that doesn’t mean you can’t take action you already planned to take for other legitimate reasons before you found out the employee needed FMLA leave.

Just be prepared to show you would have taken the same action whether the employee took leave or not.

Recent case: Carlyle Hill, who directed the security function for Belk department stores, began receiving poor reviews. The chain warned him that his performance needed to improve. He then told HR his wife was ill and needed his care.

Hill took 16 weeks of paid leave, but when he was ready to return, Belk denied him reinstatement. He sued for FMLA retaliation.

The court said Hill didn’t have a case because the chain could show it was ready to fire him anyway. (Hill v. Belk, No. 3:06-CV-398, WD NC, 2009)

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