Employees who takedon’t get greater protection from layoffs than employees who don’t take leave. As long as you can show that you would have eliminated a job even if the employee had not taken leave, the termination is fine.
Advice: Make sure you carefully document your decision-making process. You’ll need to be able to show you had a valid business reason for the termination that had nothing to do with the employee’s FMLA status.
Recent case: Karen Leal took a job as a call center trainer when business was booming. Then came the economic downturn. The number of employees needing in-house training fell by half. As business fell off, Leal picked up other tasks to fill her time.
Then Leal tookunder the FMLA. At the time, her supervisors were already discussing whether they needed a trainer, now that staffing was down. The debate intensified when they realized Leal had been doing work other than training. Other employees had been performing those tasks while she was on FMLA leave.
Leal’s bosses decided to eliminate the training position, partly because of the reduced workload. But they also reviewed how effective the training had been and concluded it had not helped generate additional sales.
Then they learned that Leal was about to purchase a new car and hire a nanny so she could return to work. To spare her those expenses, they called her and offered a severance deal.
She rejected the offer and sued, alleging FMLA violations.
But the court tossed out her case after it became clear that no one else had picked up her training duties.
Plus, the economic justification was clear, as was the fact that the company had begun discussing eliminating the job before Leal took leave. (Leal v. BFT, No. 10-20411, 5th Cir., 2011)