Remind bosses: The wrong choice of words can bolster an employee’s retaliation lawsuit

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in FMLA Guidelines,Human Resources

Ill-chosen words can haunt incautious supervisors. Example: Using the term “slacker” to describe someone who misses lots of work. Here’s why: Disparaging comments may be proof that the employer retaliated against an employee for taking too much leave.

Recent case: Craig was a Lee County EMT. He took considerable FMLA leave for himself and to care for his parents. The county routinely approved his FMLA leave requests.

Then, after six months, he was terminated for arriving late to an emergency call. He sued, alleging retaliation.

As evidence, he introduced testimony from his union representative. The rep recalled that he told several employees that management had Craig on its “radar” for taking too much time off.

The rep also testified that supervisors referred to employees with absenteeism problems as “slackers.”

Craig also pointed out that another EMT who was also late for a call was merely suspended. She hadn’t used FMLA leave—and in her case, the patient actually died, perhaps because of the delay.

That was enough for the court to let Craig’s case proceed. A jury will now decide whether he was really punished for being a late or for taking too much FMLA leave. (Cotora v. Lee County, No. 2:10-CV-775, MD FL, 2012)

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