IN THIS ISSUE:

1. Feature Story: Yes, You Can Fire An FMLA-Protected Employee Without Violating The Law

2. Cathie's Corner: When The Hum Of The Air Conditioner Goes Silent

3. No Fun: Vacation Cancellation Request

4. Free Report: U.S. Supreme Court's 2008-2009 Employment Law Decisions

5. HR Soapbox: Should Job Seekers Alter Their Appearance To Land A Job?

AHI's We Couldn't Make This Up 

Internal Affairs is investigating allegations that a Queens, New York, police department sergeant helped himself to whatever he wanted from a Dunkin' Donuts. On seven different occasions Internal Affairs witnessed the officer — who held the position of number two integrity control officer at his precinct — enter the store, hop over the counter, and take whatever he wanted. According to the store manager, the sergeant occasionally left a dollar or two on the counter before leaving, but it was never enough to cover what he took.

1. FEATURE STORY:
YES, YOU CAN FIRE AN FMLA-PROTECTED EMPLOYEE WITHOUT VIOLATING THE LAW

An employee's performance problems come to light after they go out on leave under the Family and Medical Leave Act (FMLA). Do you fire the employee based on the performance issues? Or do you retain the employee because the timing of the termination will appear discriminatory?

Despite having a legitimate reason to fire an employee, employers understandably shy away from pulling the termination trigger if the employee is out on FMLA leave. Fear of a lawsuit often leads an organization to retain a poor performer unnecessarily. The following case shows that a healthy fear of the FMLA should not be paralyzing.

FMLA Leave Reveals Performance Problems

When the manager of a service center took FMLA leave, his employer hired several employees to cover for him. The replacement employees uncovered multiple problems, including employees not following procedures, damaged freight hidden in trailers, customer complaints, and overtime not being handled properly.

Also, several shipments that the manager had entered into the system as "waiting for an appointment" were not appointment deliveries; they were actually deliveries that had not been made on time. Other shipments that had been entered as "delivered clear" were, in fact, delivered late, damaged, or incomplete, according to the corresponding freight delivery receipt. (Freight delivery receipts reflect the date and quality of the delivery.)

One of the employees notified the VP of Operations regarding the discrepancies. The VP examined a 30-day sample of freight delivery receipts and compared them to the corresponding computer entries made under the manager's computer log-in code. Not only did he confirm the discrepancies, but he also discovered other, similar problems.

The VP also found that the majority of the manager's computer entries were made late at night and within minutes of each other, leading him to conclude that the entries were not errors, but, rather, were deliberate attempts to hide late and damaged deliveries. The VP spoke to HR, and had the assistant VP of Operations review the records, who agreed with the VP's findings. The day the manager returned from leave, he was fired.

The manager filed an FMLA lawsuit, claiming that the company interfered with his FMLA rights by failing to restore him to his previous position and retaliated against him by firing him. He pointed to the fact that the termination decision was made while he was on FMLA leave; he was fired the day he returned from leave; and he had a 15-year record of positive performance reviews.

Appeals court: Case dismissed. While the timing of the termination may look suspicious, there is no doubt that the company fired the manager because it believed he was covering up shipment problems. "The fact that the leave permitted the employer to discover the problems cannot logically be a bar to the employer's ability to fire the deficient employee."

The existence of positive performance reviews does not prohibit an employer from relying on newly uncovered evidence on which to base a termination decision, the court continued. The relevant inquiry is the employee's job performance at the time of the termination. (Cracco v. Vitran Express, Inc., 7th Cir., No. 07-3827, 2009)

FMLA Fire Fight

Before firing an employee who is on FMLA leave, has recently returned from FMLA leave, or has requested FMLA leave, be sure that the termination is clearly tied to legitimate performance issues and not to the FMLA. Here's what the employer in this case did right.

1. Conducted a thorough investigation. The court found that the company had a reasonable belief that the manager had been covering up shipment problems. The company presented strong evidence that, not only was the termination decision not based on his use of FMLA leave, but also that it would have fired him even if he had not taken leave.

2. Acted in good faith. None of the company's actions suggested to the court that company management acted under a prohibited animus. The manager had no evidence that the reports of delivery issues did not take place or that the investigation into those issues was not a bona fide attempt to assess their accuracy. The case could have gone differently if the company had put the manager's work under the microscope after he went on leave without having an impetus to do so.

Warning: Even if you have an employee's work under a microscope and performance problems documented before they go on leave, the timing of any performance-based discipline will be scrutinized in court. If your company was aware of performance problems, but did not begin an investigation into the incidents or impose discipline at or near the time of the incidents, and imposed discipline only after the employee goes out on FMLA leave, the court could find that taking FMLA leave negatively factored into the discipline decision.

3. Followed past practice. The manager could not show that the company retained another service center manager with similar performance issues who did not take FMLA leave.

Preventive Measures For Avoiding A Similar Situation

Don't end up like this company, which was unaware of the manager's shortcomings until he took a leave of absence. Supervisors need to supervise their employees' work. Don't assume that all is well just because there is no evidence to the contrary.

For positions where lack of oversight could lead to more serious issues than general poor performance (e.g., embezzlement), there should be checks and balances in the work process, including requiring employees to take off at least one full workweek at a time every year.

The new Family and Medical Leave Act (FMLA) regulations that became effective earlier this year required employers to make many changes to their FMLA policies, procedures, and documentation. 

In order to avoid potential FMLA legal traps, you need to know how the new regulations changed tricky issues like: employee eligibility, intermittent leave, pregnancy, and, light duty, if you don't want to risk costly DOL fines.

Just ask the employer that gave incorrect return-to-work information to a pricing coordinator and got sued for FMLA violations. The employer lost the case AND $555,666!

We can help protect you and your organization from a similar fate. Now, for less than the cost of an hour with your lawyer, you can get answers to the 10 biggest FMLA problems facing employers today. 

Register today for:

The Top 10 FMLA Compliance Problems
Under The New Regulations
90-MINUTE LIVE WEB CONFERENCE
Wednesday, August 26, 2009
1:00 - 2:30 PM Eastern Time
Charles P. Stevens, Esq.

During this web conference, you'll get solutions to the following FMLA situations that were impacted by the new regulations and are plaguing employers today: 

• Intermittent leave
  
  
• Light duty and alternate positions
  
  
• Certifications from health care providers
  
  
• Employee communication responsibilities
  
  
• Employer communication responsibilities
  
  
• Enforcement of attendance policies and other work rules, including employee misconduct
  
  
• Return from FMLA leave and reinstatement of benefits

Visit our website to REGISTER today! Or if you prefer to register by phone, call 800-879-2441 and mention promo code G15275.

2. CATHIE'S CORNER: WHEN THE HUM OF THE AIR CONDITIONER GOES SILENT

I'm working from home today, and it's hot. For the first time all summer, I've left the air conditioner on in the bedroom so I'll have a place to retreat to (we don't have central air). The humidity is high, too, and for this northern girl, it's somewhat uncomfortable. I'm having nightmares about a power outage or the air conditioner breaking down. Sooner or later, that's going to happen to us all, even in the workplace. The question: What do you do?...Continue the story.

3. NO FUN: VACATION CANCELLATION REQUEST

One of the hardest conversations you may have with an employee that is not termination-related is when you must tell them to cancel their vacation plans. They're not going to readily acquiesce, even if there is a legitimate business emergency. While you have every right to make the request...Continue the story.

4. FREE REPORT: U.S. SUPREME COURT'S 2008-2009 EMPLOYMENT LAW DECISIONS 
 

Check out the Free Report, "U.S. Supreme Court's 2008-2009 Employment Law Decisions," which summarizes each of the Supreme Court's eight employment-related decisions issued during its 2008-2009 term, and what they mean to employers. The rulings cover everything from reverse discrimination, to age discrimination, to retaliation, to pregnancy discrimination, to benefits, to unions and mandatory arbitration agreements.

5. HR SOAPBOX: SHOULD JOB SEEKERS ALTER THEIR APPEARANCE TO LAND A JOB?

Earlier this month, I came across a couple of articles that got me thinking about whether a person's appearance helps or hurts their job search. Apparently, some job seekers think it can hurt, and are taking steps to help themselves....Continue the story.