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Many HR pros are surprised to learn that legal protection from retaliation isn’t always guaranteed for them.
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Employers have been successful defending themselves from FMLA claims
ruled in favor of employers in a bevy of Family
and Medical Leave Act (FMLA) cases in 2016, making it the "year of the employer," said Marjory Robertson, assistant vice president and senior counsel with Sun Life Financial Services Company Inc., at the Association of Corporate Counsel's Annual Meeting. Sun Life sells group disability insurance.
When employers put in the effort and are relatively kind to employees, they more often than not win FMLA cases, she said.
When employees won cases this year, employers typically were "oblivious or awful," she said.
Proof of Retaliatory Intent
Retaliation is hard for plaintiffs to prove since employers rarely tell them "I'm retaliating against you for taking FMLA leave." To prove retaliation, plaintiffs typically point to being terminated shortly after they return from FMLA leave.
That may not work anymore though, as courts this year said that close timing between the leave and termination isn't enough alone. Instead, employees need to show that retaliation happened soon after employers knew of the need for FMLA—a tougher standard.
Even if there are some remarks indicating retaliation, if they're isolated or ambiguous, courts have let employers off the hook when the comments weren't made soon after knowledge of the need for leave.
Courts also allow employers to say bad things about employees abusing FMLA leave, though courts won't allow employers to get away with criticizing workers for taking FMLA time off.
Employees have had the burden of proof in retaliation cases this year, while employers have had the burden of proof on claims of interference with FMLA rights, Robertson observed. So she said it's safer to let employees take leave and address conduct or performance problems after they return from FMLA leave than when they are on leave.
Courts have been lenient on employers in interference claims this year. For example, employers aren't supposed to make employees work while they're on FMLA leave. Despite that fact, in one case two managers sent work assignments home to an employee on FMLA leave and the court ruled for the employer. The court concluded that the employer wasn't liable because the worker didn't complain about the assignments.
Employers often justify termination by saying employees who were on leave were poor performers. But the employees in turn argue that this is pretext for exercising their FMLA rights. The classic way to show pretext is to demonstrate that others who were "similarly situated" were not disciplined.
Courts have defined "similarly situated" this year as almost exactly the same, Robertson said. Plaintiffs have to show the same supervisor, same standards and same conduct were involved to prove pretext, according to some courts—and that is a tall order.
Other Grounds for Termination
Even if an absence may fit within the FMLA, if an employee did not follow the employer's call-in procedures, that employee may be disciplined or even terminated, she noted.
And if an employer has an honest belief that it is terminating an employee for misconduct or poor performance, courts are likely to rule there is no FMLA violation, even if the belief turns out to be wrong, she added.
Robertson concluded with a few cautionary notes, however.
First, when calculating whether an employer has 50 employees at a site such that it is covered by the FMLA, remember that a telecommuter's worksite isn't his or her home, but where that worker reports to.
In addition, she reminded attendees that essential functions of the job don't matter under the FMLA. So, if mandatory overtime is an essential function of the job, under the Americans with Disabilities Act (ADA), the employer wouldn't have to accommodate the worker. But under the FMLA, the employee still has the right to leave, including intermittent leave, even if that means the worker can't perform mandatory overtime.
Finally, employers should remember that leave may be required under the ADA beyond FMLA leave, Robertson reminded. But, she said, once additional leave has been granted, some courts are saying that more leave beyond that isn't required unless a doctor can provide a specific time frame for more time off.
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