Mindy Chapman, Esq., Mindy Chapman & Associates

Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law monthly newsletter. Sign up here for Mindy's biweekly Case in Point e-letter.

She is highly regarded for her workplace compliance training that “clicks and sticks,” because it is practical and memorable. The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally.

View all articles by Mindy Chapman, Esq., Mindy Chapman & Associates

Sure, at one time or another, we’ve all worked for some great bosses and some bad bosses. But nothing can be more debilitating than working for someone who is ignorant of the laws. In the following case, a company president walked right into an FMLA lawsuit because he had never even heard of the Family and Medical Leave Act. He knows about it now ...

Case in Point: Nydia DeFreitas, a residential property manager for a Utah real estate firm, was successful at her job. So successful that when she tried to resign, the company’s president, James Terry, lured her back with a substantial raise and promotion to regional vice president.

DeFreitas was then tasked with managing one of the company’s most challenging properties. She continued to receive lavish praise, including an e-mail that said she was “doing a dynamite job.”

But the trouble started when DeFreitas had to undergo a hysterectomy. She informed president Terry that she needed to take medical leave. Terry never mentioned the FMLA or her rights to take job-protected, unpaid leave under the law.

DeFreitas was given time off for the surgery. But about three weeks into her leave DeFreitas informed Terry that she would need an additional six weeks to recover. The next day she received an unexpected e-mail from Terry telling her that she was fired. His reasoning: DeFreitas had poor interpersonal skills and several management problems had occurred at her properties. (However, when a prospective employer for DeFreitas later contacted the company, Terry indicated her reason for leaving the company was “illness.”)

Defreitas sued, citing interference with her FMLA rights. The company countered that she was fired for business reasons. And anyway, the company argued, how could president Terry have denied her FMLA leave since he had “never heard about that law” before the claim? Can you be punished for violating a law that you’d never heard of? (DeFreitas v. Horizon Investment Mgmt. Corp., 10th Circuit, 8/14/09)

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What happened next and what lessons can be learned?

The court sided with DeFreitas, sending the case to a jury trial. Ignorance of employment law is no excuse, it said.

The court noted that it was ironic that the FMLA was enacted (16 years ago) precisely because “employers had found it in their economic self-interest” to fire employees who were unable to work due to medical reasons, and that president Terry’s admission makes it “eminently reasonable to infer that he engaged in that very practice.”

The court also astutely observed, “Whenever termination occurs while an employee is on leave, that timing has significant probative value.”  Tick, tock.

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Three Lessons Learned … Without Having to Go To Court

1. Take responsibility for training your leaders. How embarrassing and devastating. What company in 2009 has a president who hasn’t heard of the Family and Medical Leave Act of 1993? HR must take responsibility for educating their leaders about 21st century laws. After all, we are nine years into it and 16 years into the FMLA.

2. Follow your own rules. The court noted that this company failed to follow its own employee handbook, which promised to first give an employee coaching before firing. Don’t create the rules and then refuse to play by them. Courts hate that.

3. Buy an FMLA Stopwatch. Gee, if a court can click start (leave) and stop (you’re fired) in the same breath, you are probably going to being writing a check within the minute.

Mindy explains—in her trademark entertaining style—what the EEOC is targeting and how your organization can fly under the Commission’s radar. In Curing The Lawsuit Epidemic — with Mindy Chapman’s HR ‘Booster Shot,' Mindy explains:

• Where employers are most vulnerable to employee lawsuits in today's economy—and how you should build your defenses immediately.
• The essential changes to policies and procedures needed to avoid employment liability in 2009 and 2010.
• The latest legal developments that every HR professional should be aware of
• Practical lessons you can apply today from 10 recent lawsuit rulings.
• The meaning of “DITO DITA” and why you should post this motto on your wall.

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