Here’s a tip that can prevent a needless lawsuit over. When a supervisor recommends firing an employee, make sure the final decision-maker doesn’t know about any recent or current usage.
That way, the employee can’t successfully argue she was really fired for exercising her.
Recent case: Tyjuania hurt her back at work, and took 20 days ofleave to recover. Then she took another week of FMLA leave so she could provide care for her mother, who was seriously ill.
Shortly afterward, her employer told her that she was being terminated for past performance issues, including several instances of insubordination, for which she had already served a suspension.
Tyjuania sued, alleging she had really been fired for twice taking FMLA leave.
But her employer explained to the court how it arrived at the termination decision: HR was responsible for the final decision and made that determination based on Tyjuania’s past discipline problems. The HR professional handling the case received a file that contained no information on Tyjuania’s FMLA usage, so the leave couldn’t have influenced the outcome.
The court dismissed the claim, concluding that the decision-maker hadn’t considered FMLA leave usage, since she knew nothing about Tyjuania’s FMLA history. (Stokes v. Dallas County Juvenile Department, No. 12-10375, 5th Cir., 2013)
Final note: If you are a large employer, it makes sense to designate one individual to make or approve the final decision on all. Exclude from the paperwork that person reviews any reference to protected leave under the FMLA. If you already outsource , this should be easy. If you don’t, making the change may take some reorganization, but could also yield good legal protection.