Hello and thank you for entrusting me to answer your question. My goal is to answer your question completely and thoroughly and to provide excellent service.
The text of the FMLA prohibits discrimination because of the exercise of FMLA rights.
It does not provide absolute job protection, and in order for a plaintiff to have a valid cause of action for wrongful termination, he or she must demonstrate by a preponderance of the evidence a "causal link" between their FMLA leave and termination. See Richardson v. Monitronics International, Inc.
434 F.3d 327 (2005).
You can read the Richardson
opinion here for a more detailed explanation of the prima facia elements of an FMLA claim for wrongful termination: http://law.justia.com/cases/federal/appellate-courts/F3/434/327/516033/
If an employer has documentation of an employee's performance issues, even if the employee was never formally warned or reprimanded for misconduct, that documentation may be sufficient to rebut allegations that the employee's FMLA leave was a factor in their termination. The key is that the performance issues were documented
. Courts will be very skeptical of an employer who conveniently "claims" that an employee on FMLA leave was a poor worker, without proof, and uses that as a justification to let them go.
One problem that potentially arises when firing an employee for performance issues while on FMLA leave is that the employer must be able to explain why the employee was not terminated prior to her taking leave. Why as the employer did you wait until the employee was on FMLA leave to fire her for pre-existing performance deficiencies? Sometimes more than others it is hard to come up with a good explanation for this.
For this reason, it is often better for an employer to lay off an employee on FMLA leave for financial reasons ("reduced staff needs") as such justification does not require an explanation of the delay in deciding to let them go "now." Provided an employer can demonstrate an actual financial need to reduce staff, this is one of the most sure ways to lawfully terminate an employee on FMLA leave.
I sincerely XXXXX XXXXX this information helps you and I wish you the best.
If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit,
as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY
or CONTINUE CONVERSATION
button and I will be more than happy to continue assisting you.
Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.
Thank you and very kindest regards.