It’s crucial to keep meticulous records, from requests to approvals to return-to-work discussions. If you fail to create a solid paper trail, courts will resolve any questions in the employee’s favor.
That means your disciplinary action against perceived FMLA abusers may well be viewed as retaliation for taking .
When an employee lets you know he or she will need leave for a serious health condition, ask for medical certification. If you don’t agree with the report, you can request a second and even third opinion.
The key point: Always let the employee know if you approve the leave and for what time period. If you don’t, your silence amounts to approval.
Recent case: Care Centers employee Kathleen Ryl-Kuchar became pregnant with triplets. She gave the company an from her doctor, indicating that she’d need bed rest before the birth and for two months after. Care Centers never responded.
She gave birth prematurely. While on what she assumed was FMLA leave, she called her supervisors to discuss returning to work part-time. They never called back, so she submitted her resignation.
Care Centers then looked into some of her prior absences (before the birth), suspecting she had falsified time sheets. It cancelled her health insurance retroactive to before the birth based on ineligibility, alleging that she’d worked fewer hours than required for full-time work. That left her with big medical bills.
She sued, claiming retaliation for taking FMLA leave. The court sent her case to trial because it was suspicious of Care Centers’ actions, noting that the company couldn’t show any solid documentation about Ryl-Kuchar’s FMLA leave nor any good reason for terminating her retroactively after she quit. (Ryl-Kuchar v. Care Centers, Inc., No 05-3223 ND IL, 2006)
- The labor law waiting to trip you up--even if you're not unionized!
- Stay mum on lawsuits, complaints to cut retaliation risk
- Vague complaints not enough to trigger retaliation protection
- Given California's strict break rules, can employees work through lunch?
- Beware 'aggravated misconduct' firings--unemployment benefits hang in the balance