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Always check supervisor’s firing recommendation

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in FMLA Guidelines,Human Resources

The FMLA allows double damages for willful violations. Recently, the 8th Circuit Court of Appeals ruled that the extra damages can be levied against an employer that essentially rubber-stamps a supervisor’s wrongful termination decision.

All the more reason for HR to be deeply involved in every termination decision. Sign off on a termination only after you have carefully investigated, making sure that the supervisor’s recommendation was fair. Check to ensure that other employees who broke the same rules or performed just as poorly were also terminated.

Recent case: Kathleen worked as a production supervisor at Saint-Gobain Containers, which makes beer bottles. She oversaw the plant’s hourly employees. When she worked the night shift, she was in charge of the entire factory.

Kathleen had health problems and took several weeks of FMLA leave after informing HR and her super­visor. When she didn’t come back to work on her original return date, her supervisor fired her.

However, Kathleen provided additional medical documentation showing she was still unable to work, so Saint-Gobain rehired her.

Then, a few months later, Kathleen learned she would need more FMLA leave, this time to care for her husband as he recovered from surgery. She told her unsympathetic supervisor, who didn’t pass the information on to HR. Instead, the supervisor wrote up Kathleen up for several mistakes, including improperly testing bottles and failing to report that a piece of equipment was malfunctioning during her shift.

The supervisor recommended termination and Saint-Gobain fired her. This all happened within 48 hours of Kathleen’s FMLA request.

She sued. She had evidence that others who made bottle-testing mistakes and didn’t report equipment failures had kept their jobs. The jury that heard Kathleen’s case concluded that her supervisor, angry because Kathleen wanted more FMLA leave, had persuaded the company to fire her.

It awarded Kathleen $206,000 in damages—and then doubled that amount for a willful FMLA violation.

Saint-Gobain appealed. It argued it knew nothing about Kathleen’s FMLA request and merely terminated her because of poor performance. It also argued that double damages shouldn’t be available under the FMLA for its unknowing discrimination. Its contention before the appeals court was that if an employer is found liable under the so-called “cat’s paw theory”—that is, if it disciplined an employee based on her supervisor’s discriminatory intent—it should only pay actual damages, not double.

The 8th Circuit Court of Appeals disagreed. It said employers are responsible for tainted decisions. (Marez v. Saint-Gobain Containers, et al., No. 11-2354, 8th Cir., 2012)

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