Benefits & Compensation News

Is it legal? Firing an employee 2 days after FMLA request

An employee requested FMLA leave to accompany his wife to the doctor. Two days later, he was fired and a legal battle ensued. The eventual winner may surprise you.

On the surface, the employer’s actions seem pretty shady. After all, the employee just wanted to take time off to be with his sick wife at the doctor. Not exactly a fireable offense.

Sounds like a classic case of FMLA interference, right? It does, until you dig below the surface.

Performance docs to the rescue

Frank Brown was employed at ScriptPro, a company specializing in pharmacy automation.

His 2007-2008 performance review was less than squeaky clean. In addition to satisfactory ratings for the quality of his work and attendance, Brown received marginal rankings in the areas of organization and personal relationships.

The written evaluation also contained criticisms that he used the Internet excessively, lacked respect for personal boundaries and was belligerent toward co-workers.

So two days after receiving his request for leave, ScriptPro terminated him, citing “unresolved, previously discussed performance issues.”

Was it just a coincidence that his termination happened to occur immediately after his request for leave? We may never know. But a district court — and later an appeals court — ruled there wasn’t enough evidence of wrongdoing to let a lawsuit for FMLA retaliation stand after Brown sued.

3 keys to FMLA interference

Brown claimed ScriptPro interfered with his right to take FMLA leave.

For an FMLA interference claim to stand, an employee must prove three things:

  1. He or she was eligible for FMLA leave
  2. An adverse action by an employer interfered with his or her right to take FMLA leave, and
  3. The adverse action was precipitated by the employee’s taking of leave or request to take leave.

The appeals court ruled Brown’s lawsuit failed to satisfy the third factor. It said under different circumstances — like one in which the employee didn’t have performance docs to support the termination — the close timing of the firing and the leave request might be enough to satisfy the third factor.

But the court said ScriptPro produced enough evidence to show it would’ve fired Brown regardless his FMLA leave request.

Stay on top of managers

This case provides another in a long line of examples of why it’s important to make sure managers are properly documenting employees’ performance problems.

Without performance docs, ScriptPro wouldn’t have gotten off so easily. In fact, it would probably still be in the midst of a lengthy — and expensive — legal battle.

Cite: Brown v. ScriptPro, LLC

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