Job Elimination During FMLA Leave OK’d

By Brian C. Hey June 14, 2017
Job Elimination During FMLA Leave OK’d

The Family and Medical Leave Act (FMLA) does not protect an employee from being terminated if her job happens to be legitimately eliminated while she is on leave, according to the U.S. District Court for the Northern District of California.

Akima Infrastructure Services LLC hired Sarah Rodriguez on Oct. 7, 2014, as a recruiter. In June 2015, Rodriguez formally requested a leave of absence due to her pregnancy. At the time of her request, Rodriguez was not eligible for FMLA leave because she had not met the 12-month length of service requirement.

Rodriguez's leave started on June 8, 2015. On Aug. 5, 2015, Rodriguez gave birth to twins. On or about Aug. 25, 2015, Rodriguez informed Akima that she planned to take FMLA leave from Oct. 7, 2015—the first date she became eligible for FMLA leave—to Nov. 2, 2015. By Sept. 30, 2015, however, Akima had decided it would eliminate Rodriguez's position due to legitimate business reasons—namely that the company was beginning to lose significant revenue, compelling it to restructure her divisions. Rodriguez's position would be eliminated, some of her duties would be moved to the employment manager, and the rest of her duties would be assigned to another employee. 

On Oct. 23, 2015, approximately one week before Rodriguez's FMLA leave was set to expire, Akima contacted Rodriguez at home and informed her of its decision to eliminate her position and terminate her employment. Rodriguez sued Akima, claiming that it interfered with her FMLA rights when it failed to reinstate her to her former position.

The court found in favor of Akima. The FMLA does not create a greater right to reinstatement than the employee would receive if she had not taken FMLA leave, the court stated. Akima's legitimate, well-documented reasons for eliminating Rodriguez's position clearly established that Rodriguez would not have been employed in the same position even had she not taken FMLA leave.

[SHRM members-only toolkit: Coordinating Leaves of Absence]

In addition, the court noted that Rodriguez admitted during her deposition that no one told her she was terminated because she took a leave of absence and no one said anything discriminatory regarding the fact that she took leave. Rodriguez's testimony combined with Akima's documentation helped the company meet its burden in establishing that it had a legitimate reason not to reinstate Rodriguez to her prior position. The court's decision did not explain why Akima granted Rodriguez FMLA leave after it had already decided to eliminate her position or why the company decided to wait one week before Rodriguez's return to work to notify her of her job elimination and termination.

Rodriguez v. Akima Infrastructure Services LLC, N.D. Cal., No. 16-cv-3607 (May 19, 2017).

Professional Pointer: The old adage "document, document and document" has great application here. Akima was able to overcome Rodriguez's allegations of FMLA interference by documenting the company's legitimate reasons for eliminating her position.

Brian C. Hey is an attorney with McMahon Berger, P.C., the Worklaw® Network member firm in St. Louis.

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