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Feel free to impose legitimate discipline, even if employee is out on FMLA leave

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in FMLA Guidelines,HR Management,Human Resources,Leaders & Managers,Management Training,Performance Reviews

The FMLA provides protected leave for employees who meet the law’s eligibility requirements. That protection includes the right to reinstatement to the same or an equivalent position when the employee is ready to return to work.

But that right has limits. Employers are entirely within their rights to continue any disciplinary action they began before the employee went out on leave—including demotion or termination. In other words, the right to reinstatement isn’t absolute.

Employers that are confident they can prove that they would have disciplined the employee whether she took leave or not shouldn’t fear losing an FMLA interference lawsuit.

They can also use anything they discover during the employee’s leave to bolster their disciplinary decision. That’s what happened in once recent case.

Recent case: Ellen Schaaf worked for GlaxoSmithKline as a regional vice president, where she was in charge of building her region’s sales to acceptable levels. She apparently succeeded at first, pushing employees to rack up greater sales.

Then some of those employees began lodging complaints about Schaaf. Several contacted HR, which began an investigation.

HR then interviewed other employees that Schaaf supervised. The results were disturbing.

Subordinates said Schaaf was overbearing and demeaning. Employees said they never knew when she would attack. They claimed she played favorites, shared confidential performance review information with other employees, lacked good communications skills, failed to return calls and generally drove down morale.

As a result of the investigation, GlaxoSmithKline concluded Schaaf should get additional training to strengthen and build her management skills. Then it told her she had to complete a performance improvement plan (PIP).

At about that time, she announced she was pregnant with her fourth child and would eventually go out on FMLA leave.

GlaxoSmithKline extended her PIP so she didn’t have to finish all the requirements until she returned. However, in the months before she gave birth, she did nothing that the plan required. For example, she didn’t register for a class she was supposed to take, nor did she even bother to return a signed copy of the PIP.

Once she went on leave, her temporary replacement discovered other problems. Apparently, Schaaf had neglected to complete numerous expense reports and had not paid several invoices. Plus, morale took a big leap forward while she was gone. Sales went up significantly, too.

Based on her failure to complete parts of the PIP and the problems discovered during her absence, Schaaf was offered either a demotion or termination. She took the demotion and then sued, alleging interference with her FMLA rights. Her attorneys argued that if it hadn’t been for her FMLA leave, GlaxoSmithKline would not have discovered additional problems.

The 11th Circuit Court of Appeals said that logic didn’t hold water. Instead, it said the test was whether taking leave was what motivated the discipline. In other words, did the employer intend to punish Schaaf because she took leave?

Clearly that wasn’t true. Instead, she was punished because the company discovered she was doing an even worse job than they had believed before she took leave. The court dismissed Schaaf’s case. (Schaaf v. GlaxoSmithKline, No. 09-10806, 11th Cir., 2010)

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