1. (TCO A) Bob has worked for Acme, Inc. for 10 years. During the entire period
ID: 463415 • Letter: 1
Question
1. (TCO A) Bob has worked for Acme, Inc. for 10 years. During the entire period of Bob’s employment, his performance had never been formally evaluated or criticized; he was never denied a raise or bonus. The company was doing extremely well, constantly hiring new employees. During the busiest time of the year, Bob told his boss that he required surgery. Bob went out on approved FMLA. Bob was terminated when he returned to work. Even though the term of Bob’s employment is not specified by contract, does Bob have a cause of action against his employer arising out of the termination? Identify and analyze the possible causes of action available to Bob and the likelihood of prevailing in the litigation. Utilize applicable law to support your conclusions. (Points : 30)
Explanation / Answer
Before terminating an employee on their FMLA leave, an employer must consider prudently whether it should make the similar termination decision if the employee was not on leave. Certainly, if the termination is dared, the load will be on the employer to show the leave was not a factor in the decision. Accordingly, it is critical to keep sufficient documentation that supports the business decisions behind the termination.
Companies sometimes terminate an employee who has requested leave or who has been out on medical leave based on that person’s poor job performance prior to taking FMLA leave. In many instances, termination of a poor performer only after medical leave has been requested will be viewed as retaliation under the FMLA and/or as interference with that individual’s statutory FMLA rights. The problem is that the employer was already aware of the employee’s shortcomings before leave was requested, but failed to take any action to correct those issues. Very often, poor performers receive good performance reviews, which makes it even more difficult to assert that he or she would have been terminated had leave not been requested. At that point, it is too late to try and correct the record, and the employee should probably be allowed to return to his or her job.
Nevertheless, major company violations, fraud or acts of dishonesty discovered only after the employee begins medical leave may be relied upon to support an argument that the employee would have been terminated regardless of the medical leave. An example of evidence sufficient to support termination during leave was presented in the recent 7th Circuit court opinion in Cracco v. Vitran Expess, Inc. Briefly, Kevin Cracco was a service manager for a trucking company, Vitran Express, Inc. Several employees hired to replace Mr. Cracco while he was out on medical leave discovered that Mr. Cracco had falsified records to cover up that freight deliveries were damaged, incomplete or had been delivered late. In addition, safety concerns and customer complaints were discovered, and overtime was not being handled properly. The 7th Circuit agreed that although Mr. Cracco’s performance reviews had been good, the newly discovered evidence was sufficient to justify the company’s decision to terminate him.
Other Valid Reasons for Termination
In addition to newly discovered evidence of serious performance issues, employers may lay-off employees out on medical leave without violating the FMLA if a reduction in force results in that employee’s entire department or division being eliminated, or the employer can show that all similarly situated employees are being eliminated. Otherwise, the fact that an employee on medical leave is chosen to be included in the lay-off may be viewed as retaliation. Companies must also take steps to send all required notices (including those who are out on leave but remain on the payroll) if the federal Worker Adjustment and Retraining Notification Act (WARN) (and/or similar state provision) applies to the reduction in force.
Individuals unable to return to work after the expiration of the medical leave period may be terminated. An employer must make sure that other forms of leave and/or statutory protections do not apply. In addition, the employer must evaluate whether an employee who requests leave because of his or her own serious health condition is not entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA), which would allow the employee to perform the essential functions of his or her job.
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