Don’t let FMLA status keep you from firing lousy employee — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Don’t let FMLA status keep you from firing lousy employee

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in Employment Law,Firing,FMLA Guidelines,Human Resources

There’s a common misconception out there that says that employers can’t fire employees who have recently taken or need to take FMLA leave. Nothing is further from the truth—if you go through the trouble of carefully documenting workplace deficiencies.

The key is to never complain about legitimate FMLA use or dismiss it. Instead, make sure the employee gets all the leave she is entitled to, while you continue to document the ways in which the employee isn’t meeting your reasonable expectations.

Recent case: Leesa Capilli had a temper and didn’t get along well with her fellow employees. Her supervisor met with her to discuss the problems, including her relationship with co-workers and clients, her tendency to leave work early and her excessive absences. He put notes in her official employee file.

Meanwhile, Capilli’s physician determined she had a lung disease. When the condition worsened, she took several weeks of FMLA leave. Her supervisor told her that she could take “whatever time you need.” Shortly after she returned to work, a co-worker complained that Capilli screamed at her doctor during a phone conversation, disrupting an important client meeting.

Capilli then had an argument with three co-workers, who also complained. That same day, Capilli learned she had a throat tumor that needed to be biopsied. Her supervisor again told her to take the time she needed.

Meanwhile, higher-level supervisors discussed Capilli’s work problems with HR. They decided to fire her.

Capilli sued, alleging that the timing was proof she was being punished for taking FMLA leave and needing more time off.

The 3rd Circuit Court of Appeals disagreed. It said there was plenty of evidence that the company’s stated discharge reason was legitimate—and that Capilli couldn’t show that it was all a pretext for retaliation or discrimination. (Capilli v. Whitesell Construction, No. 07-1637, 3rd Cir., 2008)

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