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Ensure past FMLA leave doesn’t affect decision to rehire rebound applicant

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Here’s a warning to pass on to everyone involved in the hiring process: If the most qualified applicant for an open position happens to be a former employee who used FMLA leave in the past, you can’t use that leave as an excuse not to rehire him. That’s retaliation under the FMLA.

Recent case: Wayne worked as a welder and machinist until he developed a pancreatic condition. He used up his accumulated sick and vacation leave and took FMLA leave to recover. When Wayne still wasn’t cleared for work, he was approved for additional unpaid leave. When he still couldn’t return, he was discharged.

Two weeks later, his doctors cleared him for work and he reapplied for his old job. Although he was the first choice of the hiring committee, he wasn’t rehired.

He sued, alleging retaliation. A jury heard testimony that HR blocked Wayne’s rehire because of difficulties that his prior absences had caused. The jury awarded Wayne $81,000 for retaliation, which was doubled on appeal as liquidated damages for a willful FMLA violation. (Jackson v. City of Hot Springs, No. 13-1772, 8th Cir., 2104)

Final note: FMLA leave is an entitlement. Holding FMLA leave against an employee simply isn’t allowed. The employer may have had the right to terminate Wayne when he had used up all his leave and it could no longer accommodate his absence, but it couldn’t refuse to rehire him because he had used FMLA leave in the past.

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