Tuesday, July 5, 2016

Employment at-will is dead

Last week, I suggested that the “FMLA is not a personnel-file eraser.”
One does not return from an FMLA leave with a clean performance slate. Instead, one returns with the same warts with which they left. And, if those warts merit discipline, or (gasp) even termination, then so be it.
In response, one commenter cautioned about being too cavalier with discipline or termination in the wake of an FMLA leave.


If readers interpreted my suggestion about performance warts as too cavalier, then let me reassure you. An employer should never be cavalier when taking action against an employee. It’s too risky.

I hear it all the time from clients. “Aren’t we an at-will employer? Why can’t we fire this employee. This is *!%#*!”

Yes, your employees are at-will. And that and a hill of bean will get you sued.

At-will employment is dead. Do you have the right to fire an employee for no reason? Absolutely. Yet, if that employee is African-American, Other-American, a woman (or a man), pregnant or recently pregnant, suffering from a medical condition (or related to someone with a medical condition, or you think has a medical condition but doesn’t), injured, on a medical leave or returning from a leave, religious, older (i.e., age 40 or above), LGBT, serving in the military or a veteran, a whistleblower, or otherwise a complainer, the law protects their employment. Which means that if you fire them, you better have done so for a good reason. And, if you look at those categories, most of your employees fall under one of more of them. In other words, while you are an “at-will employer,” that doesn’t really mean anything anymore. Employees just have too many protections.

So, how do I suggest you respond? Follow my Golden Rule of Employee Relations. Do unto your employees as you would have your employer do unto you. If you treat your employees as you would want to treated (or as you would want your wife, kids, parents, etc. to be treated), most employment cases would never be filed, and most that are filed would end in the employer’s favor. Juries are comprised of many more employees than employers, and if jurors feel that the plaintiff was treated the same way the jurors would want to be treated, the jury will be much less likely to find in the employee’s favor.

What does this mean for the poor performing employee who takes an FMLA leave? Does that employee understand his performance problems? Was he given sufficient counseling and warnings before he took his leave? And, most importantly, can you prove it via contemporaneous documentation? If so, there is no reason to give this employee’s poor performance a pass just because of the FMLA. But, if the FMLA scares you off, I wouldn’t blame you either.