Why did this company seemingly offer FMLA leave to an employee it planned to fire?


Last night, I went through my Google Drive of older cases about which I had intended to blog but never gotten around to it. And I found this Fifth Circuit Family and Medical Leave Act decision involving a company that fired an employee two months into his leave.

The issue was whether the employee had sufficiently pled causes of action for FMLA interference and retaliation.

A meltdown, a leave, and a termination.

You may be thinking that an employee who loses his job mid-leave sure has at least the makings of an FMLA claim.

The plaintiff alleged that he received a poor performance review in June and a final warning in October. That final warning pissed the plaintiff off something vicious because the company needed to escort him off work premises.

Then, things got a little odder. The plaintiff claimed that his supervisor instructed him to apply within the next 24 hours for an “employee assistance program” based on his medical conditions. And Human Resources suggested that he apply for short-term disability coverage. Indeed, the plaintiff did apply for STD and FMLA leave and received both.

According to the plaintiff, the company fired him two months later while he was still on leave. HR cited his “poor mid-year performance review from June 2018” as a reason for the firing and stated that “it was a good time” for the plaintiff to separate from the company.

So the plaintiff asserted FMLA interference and retaliation claims. To prove FMLA retaliation, a plaintiff must allege that the defendant made the adverse decision because the plaintiff requested leave. A plaintiff alleging FMLA interference will lose their claim if the defendant terminates the plaintiff’s employment for legitimate reasons unrelated to the plaintiff’s efforts to secure FMLA leave.

Legitimate termination or potential FMLA violations?

A Texas federal judge sided with the defendant on the facts listed above, concluding that the plaintiff had failed to allege causation. The plaintiff’s alleged rationales for the termination decision were unrelated to the exercise of his FMLA rights: a poor performance review, a workplace protest of a final warning from his supervisor, and an ejection from work premises.

So, the plaintiff appealed. And with his second bite at the apple, he prevailed.

The Fifth Circuit remanded the case. Both claims had legs because the defendant waited two months after the pre-leave workplace performance issues in June and October 2018 to end the Plaintiff’s employment. Under those suspicious circumstances, the plaintiff should be able to advance to discovery.

Employer takeaway.

Here’s another “hire slow, fire fast” situation that could have prevented a lawsuit.

But it’s more than that. If you’re going to fire fast for legitimate business reasons, there’s no reason to offer leave — unless the employee requests it before you’ve decided to terminate. And if that happens, you’re probably not going to terminate fast anyway unless you have actual documentary evidence the company had already decided to terminate (e.g., emails, memos, etc.). You may be better off providing the leave instead. Otherwise, the employee will perceive that you fired him for exercising his FMLA/ADA rights.


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