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Make sure firing decision was independent of FMLA status

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in Employment Law,Firing,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training

What does your organization do when a manager or supervisor recommends a subordinate should be fired? If you simply approve the recommendation without seeking more information, you may be asking for a lawsuit.

Here’s why: If the manager’s reasons are illegal—maybe an attempt to punish an employee for asking for or taking FMLA leave—then courts will conclude that your organization shared the manager’s motives.

Instead, insist on an independent investigation and have the ultimate decision-maker carefully consider the recommendation. Then document the process and make certain you can show that the decision was based on what the decision-maker discovered—and wasn’t just a “rubber stamp” decision.

Recent case: Embarq Florida terminated Stephen Marzella six weeks after he took FMLA leave. He sued, believing he was fired because his boss didn’t like the fact he took leave. But Embarq Florida argued that no one who actually made the decision to fire Marzella even knew he took leave.

Plus, the company explained the process it used to terminate him. Two managers reviewed Marzella’s employment record, wrote a memo explaining their decision and even had the legal department review their investigation. Then, and only then, did the company actually discharge Marzella.

The court dismissed the case, reasoning that even if retaliation motivated the manager who knew about the FMLA leave, the subsequent investigation cut any connection between that illegal motivation and the actual decision. (Marzella v. Embarq Florida, No. 2:05-CV-591, MD FL, 2007)

Final note: Always independently investigate allegations before making a firm decision. It’s the best way to make sure no bias or prejudice slips in. After all, you can’t know everything that goes on down the management line, and a rogue supervisor may be making recommendations based on personal biases you never knew about.

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