Buffington Law Firm’s experienced employment attorneys are experienced at dealing with issues concerning the Family Medical Leave Act (“FMLA”). The FMLA is a well-intentioned law that is intended to make it easier for employees to deal with certain family situations such as illness or childbirth without fear of losing their jobs. The FMLA applies to most private sector businesses that employ 50 or more employees. A covered employee can take up to twelve workweeks of leave in a 12 month period. For more detailed information, consult one of Buffington Law Firm’s Orange County employment lawyers. Contact us. You can also refer to the US Department of Labor website here.
Many employees believe that their jobs are “bullet proof” if they take FMLA leave. In reality, this is not so. Under the law, an employer may not terminate an employee in retaliation for taking FMLA leave. Various court cases have held that if an employer terminates an employee who is on, or has recently taken, FMLA leave for legitimate reasons unrelated to the leave, this is not a violation of the FMLA. Legitimate reasons can include performance issues or a legitimate reduction-in-force. For example, in one case an employee was in the process of being terminated for performance and behavioral reasons, and the company was completing its investigation. During the investigation the employee took FMLA leave. The company went ahead and terminated the employee for cause. The employee sued on grounds that the company had violated FMLA, arguing that while on FMLA leave his job was in a “protected status.” Not so. The Court ruled that because facts showed that the company would have fired the employee regardless of the FMLA leave, there was no “protected” status for the employee’s job. A legitimate reduction-in-force that eliminates an employee’s job while he or she is on FMLA would similarly not be a violation.
The danger here, of course, is that if an employee’s job is eliminated the employee may file a lawsuit or labor board claim alleging violation of FMLA. Make no mistake, the burden of proof, in a practical sense, will be on the employer to convince the court that the layoff was not done in retaliation for taking the leave. We recommend that if you are planning to eliminate a job or terminate an employee who is taking, returning from, or has recently returned from FMLA leave, that you consult one of our experienced Orange County employment litigation attorneys. We can help you document the situation so that if there is litigation, your business is prepared to win it. Call us for a free legal consultation with one of our labor attorneys.