Q. We recently learned that an employee onis working for another company. Can we fire him?
A. It depends on whether you have a policy that prohibits moonlighting or holding other employment while onleave. If you do, you can probably apply that policy to the employee on leave as long as you have consistently applied it in other cases.
Courts in other states have held that an employer was entitled to discharge an employee because the employee worked elsewhere while on FMLA leave.
For example, in Pharakhone v. Nissan (324 F.3d 405, 6th Cir., 2003), it was undisputed that the company had a documented policy prohibiting unauthorized work for personal gain while on leave. The court determined that the evidence compelled a finding that the employee was discharged because he violated the employer’s no-work policy, and not because he took FMLA leave.