Snap termination decision lands employer in hot (FMLA) water


Negative employment action can mean negative results for employers

Derrick worked for the company for about 17 years when he began to have back problems.

On May 19, he scheduled surgery to occur on August 15. On May 31, he requested and was approved for leave under the Family and Medical Leave Act (FMLA). He took FMLA leave from May 31 to July 4, then returned to light duty work. He also needed intermittent leave for flare-ups and pain, which was also approved.

Things took a turn for the worst

On July 21, Derrick learned that his upcoming surgery would not be covered by insurance. He was also experiencing severe pain that day and called Mike, his boss, to get approval to leave early. Mike was out, so Derrick asked another employee to let Mike know about his desire to leave early. Derrick also called Cammie, the company HR Manager, about leaving early and left a message and asked her to call him back.

Due to the pain, Derrick left one hour early without preapproval (despite leaving messages).

On the following Monday, Cammie drafted a warning letter for Mike to give to Derrick as discipline for leaving early. Mike gave the letter to Derrick the next day.

A few days later, Mike talked to Derrick about work errors that were unrelated to his back issues. Later that day, Derrick returned to his desk and put his leg up on the desk to relieve the pain. Mike took issue with this, and when Derrick said it was because of pain, Mike told Derrick to go home.

Mike subsequently talked to Cammie, who told him to write up an incident report about it. Mike also noticed Derrick’s timesheet on his desk, which indicated that Derrick worked eight hours on the day he left early.

Thereafter, Cammie had a conference call with the executive team and collectively they decided to terminate Derrick for job performance, insubordination (his leg on his desk), and falsification of timekeeping records.

A lawsuit ensued

Derrick filed suit, and a jury found in favor of Derrick, to the tune of more than $900,000. The employer tried to get the verdict overturned, arguing that Derrick was not denied any FMLA benefit. Derrick had not given enough information for Mike to have determined whether the one-hour absence when Derrick left early was FMLA leave.

The court didn’t buy the employer’s arguments, pointing out that Derrick had tried to contact Mike and Cammie about the need for his early departure.

The employer also tried to argue that the discussion with Derrick the Monday after the early departure showed that they tried to determine if Derrick’s one-hour absence was FMLA qualifying, but the jury heard that this conversation was confrontational rather than compassionate.

Mike had told Derrick “You don’t just get to come and leave as you please.” When Derrick tried to explain, Mike said he didn’t care. Mike had also indicated that he didn’t like Derrick talking directly to HR.

The court also didn’t like that, while Mike and Cammie knew about Derrick’s intermittent leave, they did not share that information with the executive team when they discussed Derrick’s termination. A jury could reasonably have seen Cammie’s failure to make this disclosure to the executive team as retaliatory, since his related absences might have been FMLA leave.

Takeaways for employers

The speed at which the employer took negative employment actions against Derrick, who otherwise had a clean work record, gave the jury reason to return a verdict on April 22, 2022, in favor of Derrick. When the company then tried to get the verdict changed, the court denied the employer’s claim, but awarded the employee more.

Employers can look to this case for guidance about how to balance FMLA leave and employee discipline. Making snap decisions based on partial pieces of information when employees are entitled to FMLA leave will likely bring negative and costly results for employers.

White v. Oxarc, Inc., District of Idaho, No. 1:19-cv-485, December 13, 2022.

Key to Remember: Making snap decisions based on partial information is a dire combination. The timing of a termination decision can pose risks for an FMLA claim. Employers must show that the termination reason and FMLA leave are unrelated.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.  


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