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Subpar employee fired for good reason? He can still sue for FMLA retaliation

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in FMLA Guidelines,Human Resources

Many employers don’t realize that they can still be sued for FMLA retaliation by a terrible employee that they fired for perfectly legitimate business reasons if there’s a possibility he was punished for requesting or taking FMLA leave.

Recent case: Douglas Algie tracked his co-workers’ every move, apparently concerned that they had something against him. They complained.

Then HR took a close look at Algie’s employment application and résumé. It turned out he had minimized a felony conviction for trafficking in marijuana. Asked on the application to describe any criminal convictions, he explained that he had been arrested for possessing marijuana seeds after giving up drug use a year earlier.

In fact, he had pleaded guilty to felony trafficking in marijuana plants, not seeds.

Algie sued, alleging discrimination and retaliation under the FMLA.

During his employment, he received an evaluation that criticized his attendance. Algie argued that this was retaliation for taking FMLA leave and that the company had punished him by counting absences that were covered by an approved FMLA leave request.

The court tossed out all his discrimination claims, reasoning that misrepresentations on an application and tracking one’s co-workers were legitimate termination reasons.

But it allowed Algie’s FMLA claim to proceed. That’s because taking FMLA leave is an entitlement. Counting FMLA leave against an employee is illegal, no matter what the employee may have done wrong. (Algie v. Northern Kentucky University, No. 10-5166, 6th Cir., 2012)

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