Theis a complicated law, ready to trip up even the savviest HR specialist. Often, a case turns on the employer’s subjective motivation rather than its objective action.
Consider this example: An employer fires an employee for violating a policy that says workers must call if they are going to miss work. But the employee says the real reason was retaliation for taking, and that company discussed terminating him if he came back to work without his in order. Objectively, it looks as if the employee was fired because he didn’t call in, but subjectively, it looks as if the no-call violation was just an excuse.
What do you do once you realize your organization may be on the hook for an FMLA violation? The answer: Immediately, unconditionally offer to reinstate the employee. You will cut back-pay and failure-to-reinstate liability.
Recent case: Richard Knox worked for Cessna Aircraft until he had an off-work accident while four-wheeling. Knox was told he had to have his doctor fill out an, and he didn’t come to work for a week.
Meanwhile, managers discussed whether they could fire him for violating the company no-call rule, or for not having his FMLA paperwork in order when he returned. He was fired for the no-call violation. Knox sued.
When Cessna realized the court was questioning its motives and might be siding with Knox, it offered him unconditional reinstatement. When Knox refused, Cessna asked the court to cut its potential liability.
The court agreed in principle, concluding that an unconditional reinstatement offer cuts liability. (Knox v. Cessna, No. 4:05-CV-131, MD GA, 2007)
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- Remind employees: FMLA doesn't promise reinstatement if leave extends beyond 12 weeks