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Disruptive employee really deserves firing? Don’t let FMLA keep you from pulling the trigger

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in Employment Law,Firing,FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

Some employees are difficult, always skating on thin ice. They’re disruptive, don’t listen to directions and pretty much do whatever they want. Even so, employers often hesitate to fire such troublemakers if they’ve recently requested FMLA leave or claimed to be disabled.

Don’t be manipulated into keeping those bad apples. It may be risky to fire them, but if you have documented the disruption and can show you would have fired any employee for similar behavior, chances are you will win the case if there’s a lawsuit.

Recent case: Kalpana Shah had persistent trouble working with others and got frequent write-ups for insubordination and substandard work.

When presented with a poor performance review, Shah complained she was having heart palpitations and had to go home.

Finally, she asked her supervisor for FMLA leave. While he was processing her request, she got into an argument with another employee. It was so bad, she was fired.

Then Shah sued, alleging retaliation for requesting FMLA leave.

The court rejected her lawsuit, concluding that the termination was unrelated to her FMLA request. Instead, it was based on her poor performance and insubordination. (Shah v. Eclipsys, No. 08-CV-2528, ED NY, 2010)

Final note: The key to winning discharge lawsuits is good documentation. In this case, the company had a long, carefully documented history on Shah’s out-of-control behavior and insubordination. That trumped any claims of disability or FMLA interference or retaliation.

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