Every so often — not, “if I had a nickel” often, but every once in a while — someone hits me up for my two cents on firing an employee who is on FMLA or some other form of protected leave for [fill in the reason].
And my response is generally the same, “Did you know about [fill in the reason] before the leave began?
Timing can be everything.
If the answer is yes, then firing the employee either during or immediately after the leave ends is a great way to end up defending a lawsuit and, maybe, end up before a jury.
However, there is that rare occasion when the person on the other end of the phone tells me that the company learned about [fill in the reason] for the first time during the employee’s leave.
Kind’ve like what happened in this opinion.
The plaintiff had only worked for the defendants for eight months before beginning a three-month maternity leave. The company fired her on the day that she returned.
Because during the plaintiff’s maternity leave, the defendant uncovered both deficiencies in her performance and falsifications in her employment application. And the defendant ultimately prevailed on the plaintiff’s discrimination claims (pregnancy, race, age).
The defendant won because the plaintiff was unable to show that the defendant’s reasons for ending her employment were a pretext for discrimination.
Oh, she tried.
One of her arguments was that the defendant’s reasons for firing her weren’t good enough. But, the problem with that argument is that courts generally won’t second-guess a business decision that has some valid basis in fact.
Plus, the defendant’s bases for terminating the plaintiff’s employment arose for the first time during her leave from work. So, it’s not as if the defendant sat on this until the employee took leave, which would make it appear as if the leave motivated the termination of employment.
What the company did here involved risk, a lawsuit at the very least. But, what’s the alternative? Keep an employee who embellished her credentials and has performance issues. That’s not a good alternative.
These types of situations don’t arise that often. But, when they do, the operation of the business should outweigh the risk of a lawsuit.
Another situation in which hire slow, fire fast is the way to go.