Here?s a recipe for a lawsuit: Terminate a good employee who just told you she needs FMLA leave and has scheduled surgery. The timing alone will be enough to let the lawsuit proceed.
If you don?t have rock-solid justification for the termination?like a planned reduction in force?the coincidence may be expensive.
Recent case: Kathryn announced she needed FMLA leave so she could have a necessary operation. She was terminated the next day without a specific reason, despite a series of excellent performance appraisals.
She sued, alleging interference with her FMLA rights, based on the timing and the fact that she had consistently received good performance appraisals.
The court said the timing plus her past performance was enough to let the lawsuit proceed. The employer will have to explain its decision-making and prove that the timing was a mere coincidence. (Sheppard v. David Evans and Associates, No. 11-35164, 9th Cir., 2012)
Final note: Even if you were planning to terminate the employee and have good documentation showing why, timing can be a problem. That?s why you should always consult with your attorney before making a final decision. It may be better to let the employee take FMLA leave and terminate her when she returns. That?s true even if the employee works at will, meaning she theoretically can be fired for any legal reason. Firing someone for taking FMLA leave is an illegal reason.
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