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Problem employees—the kind that see discrimination, harassment and retaliation every time a supervisor so much as issues an oral warning for anything—won’t hesitate to sue and charge retaliation. They may even seek redress for minor slights by requesting FMLA leave and trying to trip you up if your response is not to their liking.

That’s why it’s crucial to track each FMLA leave request, your response and any documentation you ask the employee to provide. A simple spreadsheet will do the trick. For each request, track:

  • The date you received the request and your response.
  • Whether the employee is eligible for leave (i.e., he or she has worked more than 1,250 hours in your benefit year and has over a year of service).
  • The date you requested a medical certification, its due date and when you actually received it.
  • Final approval or denial of the request.

By tracking all relevant information, you will be prepared to show how you treated not only the employee who sued you, but also any other employee. That way, you can easily show there’s no favoritism and no retaliation.

Recent case: Linda Clark, who is black, worked for the U.S. Postal Service and filed an EEOC complaint alleging she had been unfairly reprimanded for using profanity in a conversation with a supervisor. She later filed additional charges, claiming the Postal Service retaliated against her by denying her FMLA leave.

But management maintained detailed records of each FMLA request. The records showed the Postal Service had received no request for one of Clark’s claimed FMLA requests. In the second alleged incident, the records showed that the Postal Service had asked Clark for medical certification, but she never turned one in.

The court tossed out her case when Clark was unable to present any of her own evidence that she actually made the first request or turned in the certification for the second request. (Clark v. Potter, No. 06-15287, 11th Cir., 2007)   

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