While you were out…

You’re a smart employer. You know that if your employees are not carrying their weight, you have the right to fire them. But what if you make this discovery after the employee takes leave under the Family and Medical Leave Act (FMLA)? How can you fire the employee without making it look like retaliation for taking time off?

Here’s how:  documentation.

In a recent case (Moss vs. City of Abbeville), an employee with satisfactory performance reviews took FMLA leave. While the employee was away, the employer realized how much better the team functioned without the employee, noting collectively that the employee had been “unhelpful and unsatisfactory.” However, the employee worked for the company for 29 years – never with one bad mark in his performance reviews. Because there was no previous record of poor performance, the judge would not side with the employer and found him guilty of retaliation. If the employer had documented, he would have been off without a scratch.

Performance reviews are a great way to compile information on employees, both for your own decision making process, as well as to serve as backup if you ever run into trouble (of course, only if they are completely honest).

You can find out more about this case by reading, “May an Employer Terminate an Employee Who is On FMLA Leave After It Discovers the Employee is Not Needed?” by our partners at Shawe Rosenthal LLP. Click here for the article.  (Scroll down to find it – it’s the last article on the page.)


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