Add this to your list of factors to check before implementing a reduction in force: Make sure there’s no pattern of terminating those who happened to have taken.
Recent case: Joyce, who was over age 60, had worked in the accounting department for over a decade. She got good reviews until a new software system was introduced.
Around the same time, her husband developed a serious health condition. Joyce asked for and received permission to takewhen his condition warranted.
Then the employer announced a reorganization. Joyce lost her job, as did several other employees in her department.
She sued, alleging that she had been targeted for the RIF because she had takenleave. She pointed out that one other employee who had used FMLA leave was terminated.
But the employer was ready for the challenge. It pointed out that there were also three employees who kept their jobs who had also taken FMLA leave during the same time frame. The court tossed out the FMLA claim, noting that Joyce couldn’t pick and choose who to use as a comparator when others in the department had also used FMLA leave. (Milillo v. Thomas Jefferson University Hospitals, No. 14-3143, ED PA, 2015)
Final note: Even so, Joyce will be allowed to take her age discrimination case to trial. The hospital hired four new people for the reorganized department, including several in their 20s.
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