When it comes to reductions in force, employees ondon’t have greater rights than those who haven’t taken leave. That means if an employer can show it would have chosen the FMLA leave-taker for termination even if she had been at work, there’s no FMLA violation.
On the other hand, employers that are sloppy about the RIF process may end up in court.
Recent case: Sara Hillins holds an MBA and is a self-described career woman. Her supervisor told her he was going to recommend her for promotion to vice president because of her good work.
Then she informed him she was pregnant and would be taking 12 weeks of FMLA leave, plus accumulated sick and vacation time.
According to Hillins, things immediately cooled between her supervisor and her. The promotion vanished. He began recommending that she stay home with her soon-to-be-born child. When Hillins protested, the boss explained that lots of women “say that they’re going to come back and they don’t.” He added that he was going to assume that she would not be returning.
In fact, Hillins didn’t return, but not because she didn’t want to. Instead, she lost her job in a RIF.
Hillins sued, claiming interference with her right to take FMLA leave and her right to reinstatement.
The company argued that she had simply found herself as one of those selected for the RIF, and that taking FMLA leave didn’t mean she was immune to losing her job through a RIF.
The court found the timing suspicious, especially given the supervisor’s comments, the rescinded promotion recommendation and the fact that the company went on to hire additional employees. It said Hillins’ suit could continue. (Hillins v. Marketing Architects, No. 10-2845, DC MN, 2011)
- Call lawyer before considering anything like a noncompete--even a gentlemen's agreement
- Tell supervisors: Brief contact is OK, but never badger employee out on FMLA leave
- Let injured worker stay on leave until fully healed
- Run FMLA leave concurrent with other leaves
- When employee has used up FMLA leave, consider additional time off under the ADA