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

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.

  • Nwyatt-brown

    There’s such a thing as being too “nice.”  Allowing an employee to repeatedly violate rules with little or no consequence is a recipe for disaster–or a lawsuit. 

  • Julianne CeCe

    I am of two minds on this; a second chance is not unreasonable, provided it truly is just that, a second chance (rather than a 12th chance in disguise). But also, how clear are the policies in place?  As you point out Eric, worse than no policy is a policy that is not appropriately followed.

    Eric – as always, thank you for the great post!

    • And thank you for the comment, Julianne.

      I didn’t see anything in the opinion to suggest that the company’s policies were unclear. It seemed as though, for whatever reason, the company created additional chances for what appears to be a problem employee. Not good.

  • Hjklein22

    seems to me that the problem was not so much of timing but rather that the supervisor’s testimony (presumably elicited in a pretrial deposition) undercut the employer’s defense and was sufficient to creat a triable issue of fact to preclude a summary judgement for the employer.

    • Thanks for the comment. The inconsistent explanation alone should have gotten the plaintiff past summary judgment. Moreover, in the Third Circuit, very close timing between protected activity and firing will also get the plaintiff a trial.

  • Pwhite

    Eric, hi! i met you at the March SHRM law conference and have enjoyed your posts on FlipBoard. I’m in the middle of an EEOC/Race and Retalation suit — just remember, NO good deed goes Unpunised! I warned supervisor she was being too accommodating…now its too late. Mediation scheduled for 9/2012. Thanks for all the tips and advice!

    • Thanks for the comment. Good luck with mediation.


    I Agee with Hjklein22. The summary judgment decision does not indicate if the policy was strictly followed for this employee or similarly situated employees; but, it does indicate that she was terminated – for an infraction that at least one witness said was not usually a reason for termination – very near in time to her request for FMLA leave. If it is true that this employer was previously generous in giving second chances to this employee, the generosity stopped right after she requested FMLA leave. In my opinion, the Court was correct in holding that a jury should decide whether the protected activity of requesting FMLA leave was a motivating factor for the employer. In any event, interesting post and interesting discussion.