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Beware hasty discipline for FMLA leave-takers

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in Firing,FMLA Guidelines,Performance Reviews

Even legitimate discipline against a lousy employee can spell FMLA trouble if somehow that discipline happens more quickly than it did for other employees with similar disciplinary problems.

Advice: Take your time when disciplining workers who have taken FMLA leave. It’s better to be right than fast.

Recent case: Eva Blount and Diane Durrah worked for Ohio Bell Telephone until they were fired for poor performance. Both women had recently used FMLA leave before they were terminated.

About a year before they were fired, Ohio Bell adopted a new performance program that used largely objective standards to determine whe­ther employees should be disciplined—and ultimately terminated—for poor performance. Two factors were whether employees met sales quotas and effectively handled calls.

But the program was also flexible, allowing individual supervisors to de­cide the level of discipline. They could even forgo discipline entirely and place the employee on an improvement plan.

Both Blount and Durrah were terminated shortly after taking FMLA leave. Their terminations were based strictly on their failure to meet goals and did not take into account work missed while off.

Blount and Durrah sued for FMLA violations. Both admitted they hadn’t met their goals. But they argued that other employees with similar performance problems hadn’t been terminated right away, but were given additional time to improve. The difference, they argued, was that the others had not taken any FMLA leave.

A judge said that was enough of a difference to send the case to trial. (Blount v. Ohio Bell, No. 1:10-CV-01439, ND OH, 2011)

Final note: The women also found a supervisor who testified that he had attended a meeting where managers discussed disciplining those on FMLA leave more harshly than others. That won’t help Ohio Bell at trial.

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