Sometimes it’s OK to fire before parental leave

Many employees believe that the FMLA and its state counterpart, the Minnesota Parental Leave Act (MPLA), absolutely prevent an employer from terminating someone who asks for or takes parental leave. That’s not the case.

As long as an employer can show that it would have terminated the employee for reasons unrelated to a request for parental leave, courts won’t interfere.

Unrelated reasons include reductions in force and termination for disciplinary problems and poor performance. Document the reasons and be prepared to show that any other employee in the same position would also have been terminated.

Recent case: Matthew Halleck worked on a year-to-year contract in customer service. He had several supervisors over the two years he worked for the company, each of whom received a string of complaints from co-workers and others about Halleck.

He was warned that his disruptive behavior had to stop and was placed on a performance improvement plan.

Meanwhile, Halleck announced that his wife was pregnant and would give birth shortly after his latest contract was scheduled to end. He re­­quested FMLA and MPLA time off, beginning with the day she was expected to give birth.

However, because of Halleck’s performance problems, his em­­ployer didn’t renew his contract.

He sued, alleging he had really been terminated for requesting and scheduling parental leave.

The court rejected Halleck’s claim, concluding he had not shown that the employer’s legitimate business reasons for firing him—poor performance—was just a pretext for parental leave discrimination. (Halleck v. MMSI, No. A11-256, Court of Appeals of Minnesota, 2011)

Advice: Remind supervisors to handle all parental leave re­­quests carefully. The only appropriate re­sponse to a pregnancy an­­nouncement is a hearty “Con­­gratulations!” Instruct them to refer any leave questions to HR.

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