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Has this happened to you?  You have your ducks in a row and you have documented an employee’s performance problems.  You have discussed the problems repeatedly with the employee and yet he has shown no signs of improvement.  You have no choice but to terminate the employee.  Then, before you can implement the termination, the employee suddenly requests an FMLA leave of absence.  In such a situation the employer often thinks its hands are now tied and that it has no choice but to grant the request and leave the performance problem to be addressed another day, month, or even year.  Well, not necessarily so, says the Tenth Circuit Court of Appeals!

In the recent case of Brown v. ScriptPro, LLC, the court held that an employer did not interfere with the employee’s FMLA rights when it terminated him only 2 days after the employee’s FMLA request.  The court highlighted the fact that Mr. Brown had received an annual performance review that ranked some of his performance as “needs improvement”.  He had also been criticized for his excessive internet usage and his poor interactions with colleagues and customers.  Several months later, Mr. Brown’s supervisor had continued to receive complaints from colleagues about Brown’s performance and also discussed with Brown his disappointment over an incomplete project.

Mr. Brown requested and had been granted 2 weeks of FMLA leave following the birth of his child earlier in the year.  Later in the year, Mr. Brown requested FMLA leave to accompany his wife to a doctor’s appointment, but ScriptPro denied the leave for various reasons.  Two days after that request, ScriptPro fired Mr. Brown, citing “unresolved, previously discussed performance issues” and Mr. Brown filed a claim under the FMLA.  The Tenth Circuit Court of Appeals denied Mr. Brown’s FMLA interference claim because he had failed to establish a causal link between his exercise of FMLA rights and his termination.  The court noted that the timing of a termination in relation to an FMLA request could establish an FMLA interference claim.  In this case, however, ScriptPro produced evidence of Mr. Brown’s performance issues, establishing that ScriptPro had a legitimate reason to terminate Mr. Brown regardless of his FMLA request.

Employers’ take-away

Employers should not be held hostage by the FMLA!  ScriptPro dotted its i’s and crossed its t’s by documenting Mr. Brown’s performance and producing evidence of conversations with him.  If an employer is contemplating or has decided upon disciplinary action against an employee, the employer should not halt the action solely because the employee exercises his rights under the FMLA.  The FMLA only provides the same job protection as the employee would have had if the employee had not taken an FMLA leave.  Thus, if the employee would have been disciplined or terminated, the fact that the employee requested or took an FMLA leave does not insulate the employee from the employment action.  ScriptPro underscores the importance of accurate and honest annual evaluations and timely performance conversations with your employees.

The case:  Brown v. ScriptPro, LLC, 700 F.3d 1222, (10th Cir. 2012).

Compliance Team

Compliance Team

James Venable, JD, SPHR, is the Vice President of Employment Law, Absence and Accommodation Compliance at ReedGroup, where he provides expertise in Absence Management Compliance and Employee Relations Counseling. Mr. Venable has more than 20 years of experience across senior roles in Legal, Human Resources, and Compliance from several Fortune 500 companies. Mr. Venable joined ReedGroup in April 2018 after serving as Vice President of Human Resources, Employee Relations, Labor Relations, Compliance and Environmental Health and Safety for Comcast, where he was responsible for engagement and labor relations activities for the company’s West Division Business Unit.

Lori Welty, Esq. is a Compliance Attorney at ReedGroup. Ms. Welty provides expertise in all areas of state and federal leave law, including Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and their state law equivalents as well as disability and family leave benefits. Ms. Welty is an ongoing author of ReedGroup’s LeaveAdvisor online reference tool, as well as many other white papers and articles.

Sheri Pullen is a Compliance Analyst at Reed Group. Ms. Pullen develops leave of absence and disability content across a variety of platforms and provides compliance analysis, direction, and expertise regarding the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), state leave laws, and ERISA as it relates to disability plans. Ms. Pullen has a strong compliance-focused background comprised of more than 20 years of experience in writing, editing, business analysis, and consulting.

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