For example, if an employer has to downsize due to economic conditions, employees who are out on aren’t immune. They can be included in the reduction in force as long as their FMLA status isn’t used as a factor.
But employers have to be careful—it will look suspicious if the only employee laid off happens to have been out on FMLA leave or just returned from it.
That’s why you must carefully document the RIF decision-making process and be prepared to show you used only legitimate factors when deciding who got to keep their jobs and who had to go.
Note that close timing between an employee’s FMLA leave and a layoff can seem suspicious and may be more than enough to trigger a lawsuit. That’s why you must be thoroughly prepared to justify the decision.
Advice: Don’t rely on managers remembering how the layoff decision came down. Instead, immediately document the whole decision-making process. Make sure you can substantiate each claim. For example, if you are choosing who to cut based on performance, have their latest on hand at the time you make the decision.
Recent case: Robert Seil was working as an auto parts sales coordinator for Keystone Automotive when the company was acquired by a competitor. Meanwhile, Seil developed a lung disease and needed to have an operation to remove part of his lung. He took FMLA leave to have the surgery and recover from it.
While Seil was out, the new company had a meeting to decide how to consolidate its various facilities. During that meeting, the new managers concluded Seil should go because of alleged . Seil was therefore terminated in the restructuring.
He sued, alleging he had been cut because he was taking FMLA leave.
During pretrial proceedings, Seil sought testimony from everyone who had been present at the layoff meeting. Unfortunately for the company, no one could remember any discussion about Seil’s job. Plus, it turned out that Seil had received an excellent right before he got sick.
The court said under the circumstances, a jury should decide whether Seil was targeted for termination because he took FMLA leave. Simply put, the company’s explanation didn’t have the ring of truth to the judge. (Seil v. Keystone Automotive, et al., No. 1:08-CV-701, SD OH, 2010)
Final note: First impressions really count with judges. If a judge thinks you are trying to cover up terminating an employee on FMLA leave because you don’t have supporting documentation available, chances are he or she will order a trial. The more transparent your decision-making process looks, the more likely the judge will accept your argument that FMLA leave wasn’t a factor in the decision.
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