Tag Archives: Retaliation

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

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

Dear Employers: We Have to Stop Sticking It to Pregnant Moms and Expectant Dads

Although I eagerly anticipate the arrival of a baby due to be born in the Nowak family within the next couple of weeks [number 4…somebody help me!], I assure you that my status as “expectant dad” is not clouding my objectivity regarding the rights of moms and dads in the workplace. But the fact of … 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

"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

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

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

Employee Who Abused FMLA Leave Around the Holidays Properly Terminated

Employers often complain that they see an uptick in the use of sick leave and FMLA leave around the holidays.  In the case of Southwest Airlines, however, one employee clearly took FMLA misuse a bit too far. Douglas Rydalch was a reservation sales agent for Southwest.  When Southwest closed its reservation center in Salt Lake … Continue Reading

Cat's Paw Already Impacting FMLA Claims

Last month, the Supreme Court ruled in Staub v. Proctor Hospital(pdf) that an employer in an employment discrimination case can be liable for the discriminatory animus of an employee who influences, but does not make, the ultimate employment decision at issue.  Known as the “cat’s paw” theory, it already is having an impact on claims … Continue Reading

Scared of Liability for FMLA Retaliation? Beware of Bingo Workers!

Employers increasingly are finding federal courts to be receptive forums for the consideration of an employee’s retaliation claim.  In Burlington Northern v. White, for instance, the Supreme Court held that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions.  Last year, in Crawford v. Metro … Continue Reading

Conflicting Fitness for Duty Reports Preclude Retaliation Claim

What should an employer do when an employee’s doctor releases him to return to work, but its own doctor says that the employee cannot safely return? A federal district court in Kansas recently addressed this issue, holding that an employer’s reliance upon its own doctor’s opinion that an employee could not return to work was … Continue Reading

Employee's Headache No Excuse For Insubordination

Under the FMLA, an employer’s obligation to provide leave arises only after an employee gives notice that he or she needs FMLA leave. However, it is well-established that an employee need not explicitly mention the FMLA when requesting leave. Rather, an employee’s notice is sufficient if it gives the employer enough information to reasonably conclude … Continue Reading
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