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Leave policy goes above and beyond FMLA? Make sure court sees your generosity

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in FMLA Guidelines,Human Resources

If, like many employers, you offer employees more than the required 12 weeks of unpaid FMLA leave in any given year, you may have a powerful response to a disability or FMLA discrimination lawsuit. The fact that you pay employees during FMLA leave or offer more generous leave terms can help prove that you aren’t an employer that resents sick workers and tries to drive them out.

Recent case: Shat worked as a Bloomberg investment banker for years, earning well over $300,000 an­­nually. He then began having heart problems and developed related conditions. As a result, he missed months of work over a three-year period.

Each time, Bloomberg continued to pay him because it had a generous sick leave policy. For example, Shat received his entire salary while he was on medical leave for six months. He also received two raises after taking lengthy leaves.

When the company fired Shat for deteriorating performance, he sued. He claimed that he was being retaliated against for taking FMLA leave and that allegations of poor performance were just a sham to cover up the real reason he was terminated.

The court disagreed.

It reasoned that it was clear from Bloomberg’s policies and how well it treated Shat that it wasn’t likely to give employees generous leave benefits and then turn around and fire them for taking that leave. (Ben-Levy v. Bloomberg, L.P., et al., No. 11-Civ-1554, SD NY, 2012)

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