Now, before I get to the FMLA, let me talk about another recent decision from the New Jersey Supreme Court. On Monday, the high court ruled (here) that:
- Claims asserted under the “improper quality of patient care” provision of New Jersey’s Conscientious Employee Protection Act “must be premised upon a reasonable belief that the employer has violated a law, rule, regulation, declaratory ruling adopted pursuant to law, or a professional code of ethics that governs the employer and differentiates between acceptable and unacceptable conduct in the employer’s delivery of patient care.”
- A plaintiff asserting that his or her employer’s conduct is incompatible with a “clear mandate of public policy concerning the public health” must, at a minimum, identify authority that applies to the “activity, policy or practice” of the employer.
To the two of you who care about that opinion, you’re welcome. And, to the rest of you who slogged through this post to here, huzzah! Your reward is this #LockInLuc campaign ad (h/t Deadspin) and a post about the FMLA.
(Ok, to keep reading, here’s some bribery: the ESPN highlights from yesterday’s 0-0 World Cup “thriller” between Mexico and Brazil….)
Uh, yeah, FMLA time.
So, I read this opinion yesterday from the Third Circuit Court of Appeals and I was all like, “What am I missing here?”
The court reminded us that an FMLA interference action has nothing to do with discrimination. Instead, what matters is whether the employer provided the employee with the entitlements guaranteed by the FMLA.”
In other words, if an employee is FMLA eligible, requests FMLA from an FMLA-qualifying employer, gets FMLA leave, feels better, returns from FMLA leave, and gets fired, that’s not FMLA interference.
Employer takeaway: Think twice before firing an employee on the day the employee returns from FMLA leave. It may not be FMLA interference, but you’ll find yourself defending an FMLA retaliation claim.