To minimize FMLA lawsuits, hire slow and fire fast (before the FMLA request)

July 18, 2012
By Eric B. Meyer on July 18, 2012 7:00 AM | | Comments

youarefired.jpgIn the world of Human Resources, "hire slow, fire fast" generally holds true to avoid just about any lawsuit.

Unfortunately, for one NJ employer, it didn't get the memo. And now it finds itself having to defend against FMLA interference and retaliation claims at trial.

What did this employer do wrong and how can you avoid making the same mistake? Find out after the jump...

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Fire fast.

In St. Cyr v. Brandywine Senior Living, Inc., a Certified Nursing Assistant found herself getting constantly written up for workplace rules violations. Excessive absenteeism? Yes. Ignoring an alarm? Sure. Insubordination? You know it. Consequently, the plaintiff was terminated.

No. You're not going to. Don't do it. Noooooo!

And then the plaintiff was re-hired (WTH!) under a last-chance agreement (yeah, right), where she agreed to be placed on probation for a period of 90 days. So, of course, less than 90 days later, the Plaintiff is written up for insubordination and given a final written warning (yeah, right).

Bet you can't guess what happens next?

Plaintiff requests FMLA leave (If I had a nickel...).

And next...

Two days before her FMLA leave is set to commence, the plaintiff is fired.

The reason given was that while she was on "final written warning" for having two previous write-ups and working subject to the last-chance agreement, Plaintiff was in the sitting room watching BET, an age-inappropriate channel, when she should have been watching residents, two of whom were wandering around.

Seems reasonable enough. Except, plaintiff's supervisor also testified that she did not believe this was the type of incident for which an employee should have been terminated.

Uh boy...

FMLA interference and retaliation? Could be.

An employer interferes with the exercise of an employee's right to unpaid leave if it discourages the employee from taking FMLA leave, even if the employee ends up taking the leave. An inference of retaliation exists when an employee is terminated shortly after engaging in protected activity.

And then there's the proximity factor. Cut it too close between FMLA request and termination and, at summary judgment, as the Court here recognized, the employer's proffered legitimate business reason for terminating employment, which is questionable here, won't matter one bit:

Defendant states that it did not act in an antagonistic manner in response to Plaintiff's request for leave. In fact, leave was granted, so there was no "interference." The timing of Plaintiff's termination, however, is suspect. She was terminated just two days before she was to start FMLA leave. An inference of retaliation exists when an employee is terminated shortly after engaging in protected activity. Alone, temporal proximity may not be enough to defeat summary judgment when the temporal relationship is not unusually suggestive or is too attenuated to create a genuine issue of fact
...
However, "[w]here the temporal proximity between the protected activity and the adverse action is "unusually suggestive," it is sufficient standing alone to create an inference of causality and defeat summary judgment...."Plaintiff argues that the timing of the adverse action is unduly suggestive of retaliation, and whether Defendant was unlawfully motivated to terminate her calls for factual and credibility determinations which are the province of the fact finder....The Court agrees. Therefore, summary judgment will not be granted on this count of the Complaint.

There's a lot to learn here.

Timing aside, firing an employee after she requests FMLA is a sure-fire way to find yourself in litigation, especially when that employee's supervisor claims that the offense is not severe enough to warrant termination. And don't get me started on progressive-discipline policies. They offer too many second chances to problem employees. Plus, as with any policy, having it and not following it is even worse.