Employers that can show they had decided to terminate an employee before they knew he neededaren’t liable for interfering with that leave.
But don’t think you won’t be challenged on your timing. That’s why you must make sure you can prove exactly when you made the decision.
Recent case: Thaddeus D’Ambrosia told HR he was going to have back surgery and neededleave, which his employer approved. Then, the day he returned to work, he was told that his job had been eliminated and that the decision had been made long before he asked for time off.
He sued, alleging interference with his. The employer produced handwritten notes showing it had made the termination decision before D’Ambrosia asked for leave.
There were just two problems with the documentation. First, the handwritten note was dated before D’Ambrosia asked for FMLA leave, but it referred to events that happened after the date on the note. Plus, D’Ambrosia testified the HR manager never told him that he wouldn’t have a job to return to.
The court said the note and testimony raised the suspicion that the company had made the termination decision later than it claimed. Therefore, it was possible that D’Ambrosia’s request for FMLA leave had spurred the decision to eliminate his job. A jury will now get to look at the suspicious evidence and decide whether the company was trying to cover its discriminatory tracks or had really made the termination decision before it knew D’Ambrosia needed time off for back surgery. (D’Ambrosia v. Pennsylvania Chamber of Business and Industry, No. 1:06-CV-2182, MD PA, 2008)
Advice: To credibly establish when you decided to terminate, use a date stamp or e-mail a memo to yourself.