Category Archives: Retaliation

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Sweet Justice! Dismissal of Bully's FMLA Claim Proves Employers Can Safely Terminate an Employee on the Heels of FMLA Leave

I hate bullies. Back in 4th grade, Sister Mary Demetria, OSF, told us that “hating” someone was a sin. I’m convinced Sister never met a bully. Forgive me, Father, for I have sinned. Cause, you see, whenever I read about a bully getting a good smack down, I get all warm and fuzzy inside. Such … Continue Reading

FMLA FAQ: Should an Employer Invite to the Holiday Party an Employee out on FMLA Leave?

‘Tis the season for employer-sponsored holiday parties. And I’ve been queried several times about whether an employer should invite to the annual holiday party all of those employees who presently are on FMLA leave. Several of you are already shouting at me through your computer screen or mobile phone: “Nowak, why the %*#@&* would we ask … Continue Reading

Employee Tells a Co-Worker That He Plans to Misuse FMLA Leave. Court Says It's OK to Demote 'Em!

Keith was a manager for Costco. By all accounts, he wasn’t a very good employee.  The store disciplined Keith over customer complaints, dress code violations, and failing to perform his job duties.  Consequently, he was placed on a performance improvement plan. Shortly after receiving the PIP, Keith told a subordinate that he planned to take FMLA leave “to secure his managerial rate … Continue Reading

When a Manager Makes Even One Stupid Comment after an FMLA Request, the Employer Pays the Price

How would you like to work alongside Jim, who engages in the following behavior: He makes a habit of telling co-workers what they are doing wrong, using a degrading tone of voice, and instigates arguments when doing so.  Jim regularly uses a belligerent tone of voice with co-workers. When his supervisor tells him to act more … Continue Reading

How Fowl! Is An Employee's Text and His Girlfriend's Report Enough to Establish Notice of Need for FMLA Leave? Not So Fast...

This one just smells fowl.  Delbert (not sure if he goes by Del or Bert, so I’ll just call him Delbert) decided not to show up for work at Tyson Fresh Meats on December 28. Instead, he asked his girlfriend, who also worked for Tyson, to report his absence for him. She obliged and told Delbert’s … Continue Reading

Employer's Lack of FMLA Compliance in Handling FMLA Leave Request is a Lesson for the Rest of Us

Want a glimpse into a world where an employer fails to maintain a legally compliant leave management process?  Let me warn you — what you are about to read is not pretty and not for the faint of heart. The Facts Rachna was a resident physician at St. Vincent Health Center.  She also had a … Continue Reading

Does an Employer Have an Obligation to Provide Accommodations to Pregnant Employees? Don't Follow This Employer's Lead

Ena Wages served as a property manager for one of several apartment complexes owned by Stuart Management Corp.  She began her employment on November 17, 2008, and this is significant under the FMLA because nearly one year later, on November 13, 2009, Ena’s physician restricted the number hours she could work as a result of … Continue Reading

When an Employee Returns from FMLA Leave, What Does Same or Equivalent Position Actually Mean?

Do you know what’s particularly oppressive about the FMLA? [You: Jeff, everything about the FMLA is oppressive!] The requirement that an employer return an employee to the same or equivalent position at the end of FMLA leave.   Returning an employee to the same position is easy enough to grasp.  The same is the same … Continue Reading

Employee Fired for Absences Exceeding his Certification Can Raise a Viable FMLA Claim

Have you ever made a rash decision that you wish you could take back the second you made it? One employer must feel that way right about now. Last week, a federal court refused to dismiss FMLA claims made against the employer by an employee who was terminated for exceeding the number of “episodes” of … Continue Reading

Employee's Lack of Diligence in Obtaining Timely Medical Certification Destroys Her FMLA Claim

As a management side attorney, I love when FMLA cases provide real, practical takeaways for employers that help them better administer FMLA leave.  Yesterday was one of those days, as a federal court took a plaintiff to task for: 1) failing to provide timely FMLA medical certification; and 2) failing to make a good faith … Continue Reading

Bad Timing: Can an Employer Terminate an Employee Shortly After Requesting FMLA Leave?

As a labor and employment attorney, I spend a significant amount of time counseling employers as they prepare to terminate an employee.  Often enough, the situation goes something like this: My operations people want to terminate Fred.  He has flown off the handle one too many times, and now, we think we caught him misreporting his time … Continue Reading

Dads Need Lovin' Too! Father Can Proceed with FMLA Retaliation Claim in "Macho Culture" Lawsuit

Dads need lovin’ too.  So says a federal court judge, who has allowed a father to proceed on his FMLA retaliation claim after the employee alleged that his employer’s “macho man” culture was a culprit in his ouster.  As I detailed in a previous blog post, Ariel Ayanna was an attorney at a Boston-based law … Continue Reading

"No Soup for You!" If An Employee Doesn't Turn in Medical Certification, FMLA Leave is Not Protected

Last week, I responded to an FAQ that often arises for employers when administering the Family and Medical Leave Act: How do employers count unexcused absences when an employee does not return medical certification?  Here’s a real life application of this question:  Kimberly Miedema was an employee of Spectrum Catering, and after having claimed she … Continue Reading

An "Indefinite Reprieve" of Essential Functions of Job Not a Reasonable Accommodation under the ADA

In light of the EEOC’s litigation over automatic termination provisions under the ADA (we’ve beaten you over the head with it here and here), employers generally feel as though they have no clue as to their legal obligations when it comes to providing a leave of absence as a reasonable accommodation under the ADA after an employee’s 12 weeks … Continue Reading

Employee's FMLA Leave Requires an Employer to Adjust Performance Standards

When an employee takes FMLA leave, is an employer obligated to adjust its performance standards so as to avoid penalizing the employee?  According to a recent federal court decision, the answer is Yes.  And failing to do so sets the employer up for an FMLA interference claim. The Facts Take this situation: Jeff was a … Continue Reading

Employer Best Practices for Analyzing Whether Leave Beyond FMLA is an "Undue Hardship" under the ADA

The scenario is all too common: An employee takes and exhausts 12 weeks of FMLA leave and still cannot return to work.  At this point, the employer is left with a dilemma — does it terminate employment because the employee cannot immediately return to work, or does it consider approving more leave than the 12 weeks … Continue Reading

Supervisor's Comments After Employee Seeks Leave for Hysterectomy Creates Viable FMLA Claims

Remember a few months back when I warned employers to be wary of eliminating the position of an employee who days earlier requested several weeks off for surgery? Let me take that advice one step further: if an employee informs you that she needs leave to undergo a hysterectomy, don’t tell the employee it’s “not a good time to … Continue Reading

FMLA FAQ: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave?

Q: Can an Employer Deny FMLA Leave to An Employee Who Is Not Yet Eligible to Take Leave? A.  It depends, particularly after a federal appellate court handed down a ruling on this very issue last week. The underlying story is straightforward: On October 5, 2008, Kathryn Pereda began working for Brookdale, which operates senior living facilities … Continue Reading

Manager's Loose Lips Sinks Employer's Chances of Dismissing FMLA Claim

When making difficult decisions about eliminating jobs, senior management surely may disagree as to “who” is cut and how it’s done.  However, after the decision is made, it is critical that management collectively support the decision and refrain from public dissension.  When that dissension is shared publicly or with the affected employee, it can spell disaster.  Take … Continue Reading
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