Don’t think that just because an employee was a poor performer before she requested, a poor review after the request can’t be retaliation.
If there is other evidence of retaliation (like a direct statement thatleave was a factor), then the previous won’t be much of a defense.
Recent case: Yvonne got fairly poor reviews. Then she asked for FMLA leave. Shortly afterward, she got an even worse review.
She sued, alleging retaliation for asking for FMLA leave.
In court, she presented evidence of a taped phone conversation with her supervisor in which the supervisor allegedly said her FMLA leave request was considered a negative factor in the review.
That was enough for the court to send Yvonne’s retaliation claim to trial. (Spaulding v. New York City Department of Education, No. 12-CIV-3041, ED NY, 2015)
Final note: Remind supervisors that FMLA leave is an absolute right. It can’t be used as a negative factor, even if granting leave is inconvenient or downright disruptive. It’s up toto find a way to cope with FMLA absences; they can’t blame the employee for work left undone or schedule disruptions.
Supervisors should certainly never voice any objections to FMLA leave or suggest in any way that taking leave is irresponsible, disruptive or unprofessional. In a growing number of retaliation cases, such negative comments lie at the heart of employees’ lawsuits.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Don't extend disciplinary periods due to FMLA or military absences
- FMLA can't be used for school-related absences
- The employee is well enough to do the job--do we have to grant intermittent FMLA leave?
- Check RIF list to make sure it doesn't show bias against employees who took FMLA leave