Wednesday, July 25, 2012

FMLA guarantee of reinstatement is never absolute

When an employee returns from FMLA leave, that employee is entitled to be reinstated to the same or equivalent position he or she held prior to the leave. As Winterhalter v. Dykhuis Farms (6th Cir. 7/23/12) [pdf] illustrates, however, that right to reinstatement is never guaranteed. 

Dykhuis Farms terminated Winterhalter’s employment on the day that Winterhalter was scheduled to return from FMLA leave, allegedly due to economic hardship and Winterhalter’s status as the highest-paid and lowest-performing of the workers in his unit. The court concluded that despite the fact that he was fired on the day he returned from leave, his employer neither retaliated against her nor interfered with her job restoration rights under the statute. The farm came forward with well-documented evidence that its economic hardship and its need to take "drastic measures to improve its financial performance,” motivated the termination, not Winterhalter's FMLA leave.

As the 6th Circuit correctly pointed out, the FMLA's reinstatement "provisions do not create a greater right to reinstatement or protection against termination than the employee would receive if he had not taken FMLA leave. Therefore, an employer may dismiss an employee who has taken FMLA leave, but only if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.”

Notifying an employee of a termination the day he or she returns from FMLA leave is a risky proposition. It will likely draw a lawsuit. The key to winning the lawsuit is having a legitimate and documented reason to support the termination. In this case, it was economic hardship. In others, it could be the discovery of serious performance deficiencies. Despite the FMLA's job restoration guarantee, you can terminate an employee who is out on an FMLA leave. You just have a really good reason, and you have to be able to back it up.