Kris was forced to endure the unthinkable: her daughter had just become the victim of a sexual assault.

In the weeks that followed, Kris alerted her employer of the assault and the care her daughter would require in the time ahead.  Kris suffered too.  As her doctor would later report, she had crying spells, a lack of energy and an inability to focus or concentrate.

To complicate matters further, Kris also had fairly significant performance problems in her job. From an HR standpoint, the timing couldn’t have been worse. Kris had been counseled for months that she could not work unauthorized overtime, and in the months leading up to the assault, she had been repeatedly counseled for her poor time management, and lack of initiative, detail and follow through.

Shortly after the assult, two things occurred that are relevant here: 1) Kris began bringing her daughter to work with her every day; and 2) Kris’ employer had reason to believe she had turned in inaccurate timesheets and concealed unauthorized OT.  As a result, Kris was suspended.

Shall I complicate matters even further?  Two additional facts about Kris’ situation: 1) When Kris brought her daughter to work, her employer rightfully was concerned.  But her boss allegedly told Kris that she had to choose between caring for her daughter or keeping her job; and 2) in conjunction with her formal disciplinary hearing, her employer refused to consider Kris’ written “rebuttal” to the disciplinary charges calling for her termination.

As the story goes, Kris was terminated.  An FMLA lawsuit ensued, and the court found that there was enough evidence based on the above for a jury to find that Kris’ employer interfered with her FMLA rights and retaliated against her exercising those rights.  Nelson v. Clermont Cnty. Veterans Service Cmmn. (pdf)

Insights for Employers

Deep breath.  There are plenty of takeaways here for employers:

  1. Courts continue to loosen the standards of a serious health condition.  I don’t mean to downplay how difficult the ordeal must have been for Kris, but what was her serious health condition requiring FMLA leave?  According to her doctor, it consisted of crying spells and her inability to focus or concentrate.  These symptoms alone were enough for the court here to presume that Kris suffered from a serious health condition entitling her to FMLA leave.  This finding sends a message to employers that courts are focusing far less on the actual definition of a serious health condition and more on the FMLA interference and retaliation claims themselves.  Be warned.
  2. Note to managers, supervisors, owners, HR professionals and anyone else in a position to effect a personnel decision: Stop saying stupid stuff! Did Kris’ boss have the right to be concerned when she showed up to work every day with her daughter in tow? Absolutely. But his reaction created liability for the employer. I’ve detailed all too often stories about employers (here and here) who now face a jury on their FMLA claims because they allegedly made follish remarks in conjunction with a termination decision.  Don’t do it, and train your managers ans supervisors to do the same.  This case serves as yet another example of how quickly a court will send a case to a jury as a result of one indiscreet comment.
  3. Due process must exist for all employees. Do you know what juries detest? Employers who don’t allow their employees a chance to be heard.  Here, the employer claimed that it had an “honest belief” that Kris was engaging in timecard fraud. That argument may have held up had the employer actually given the employee a chance to fully defend herself. But because it refused to entertain Kris’ “rebuttal” submission, the court determined that her employer could not rely on the “honest belief” defense. Ouch. Let’s be clear — where termination is at issue, employers have every reason to bend over backwards in allowing the employee to explain her side of the story. Constitutional due process may not apply for all, but employers still should strive for it.  When the employer refused to hear the employee out here, it paid the price. (Keep in mind a previous post where I explain the importance of a complete and exhaustive investigation.)
  4. Be empathetic. I am not suggesting that we allow an employee like Kris to use a tragic personal situation as a shield against any and all discipline (including termination), but in a situation like this one, it’s all the more critical to practice patience, compassion and concern.  I didn’t sense any of the above when reading this court case, and I wonder if the court felt the same in refusing to dismiss these FMLA claims against the employer. An intangible, for sure, but judges are human, too, and these intangibles can impact whether a case is dismissed or not.
  5. Retaliation is a scary predicament for employers. In this case, Kris also complained that the employer “overloaded” her with work upon her return from FMLA leave.  However, the court’s decision contains scant details of what the overload actually consisted of.  Yet, the court noted the overload as a factor in refusing to dismiss the case.  That’s bothersome to me.  If work given to an employee is contained within her job description, courts should not act as a super-personnel department in second guessing the situation. Nevertheless, the court did so here.  The result is that employers must be mindful not to “load up” on any employee returning from FMLA leave.