6/13/2008

Some issues have arisen with several of our employees who are out on leave—their jobs have been changed or eliminated, and one employee has done something that warrants termination. But someone told me that these workers are "protected" because they are on leave. Can we go ahead and fire them, or will we be slapped with a retaliation lawsuit? — Mary M., HR Manager in Los Angeles

Mary, you've brought up a difficult situation for employers. When employees return from leave under the Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA), they generally must be reinstated to the same job or a position equivalent in pay, shift, benefits, and employment.

Exceptions to Reinstatement

There are exceptions to this general reinstatement rule. First, employers may deny reinstatement of "key employees" whose salaries are among the top 10 percent of the company if reinstatement would cause substantial and grievous economic injury to the company. Second, employees on leave don't have any greater rights to employment than they did when they were on the job. For example, if the department an employee on FMLA or CFRA leave ordinarily works in is part of a mass layoff, he or she wouldn't have a job to come back to, just like the other employees whose jobs were eliminated during the layoff.

Another exception occurs in cases in which the employer determines that it would have terminated an employee for wrongdoing if he or she were in the office. For example, the employer discovers an employee on leave was involved in very serious misconduct, such as embezzlement. If the employer would have terminated the person had he or she been on the job, the employee's being on leave doesn't provide added protection under the law.

If one of the exceptions applies in your workplace, make sure you clearly document the decision to terminate an employee and that you act consistently, in case the employee brings an FMLA or CFRA lawsuit.

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Watch Out for Retaliation

Employers that terminate employees while on leave must be careful about retaliation suits—employees claiming they were fired because they took leave. Here are the elements of a retaliation claim:

• The employee exercised a legal right or has engaged in protected activity (taking FMLA or CFRA leave).


• The employer took an adverse action against the employee, such as disciplining, demoting, or terminating him or her, or denying a request for a reasonable accommodation.


• There's a connection between the employee taking leave and the adverse action. Ninety-nine percent of the time this is a timing issue—because the adverse act occurred soon after the protected act, from the legal perspective, they must be intertwined.

To defeat a retaliation claim, an employer would have to prove that it would have made the same employment decision regardless of the employee's taking leave. For termination cases, the employer should be able to show that, based on the circumstances, termination was the only appropriate course of action. Unfortunately, employers often have little to stand on because they don't realize that taking action against someone right after he or she returns from leave looks suspiciously retaliatory. For example, one employer claimed that it terminated an employee who had just come back from a leave because the worker violated a company policy prohibiting personal cell phone use at work. Although the employee clearly violated the policy, the employer's action appeared to be very retaliatory.

So, to avoid retaliation suits, before you fire someone who has been on leave or take other adverse action, make sure that you have a very objective, well-documented reason for taking this action.

Mary L. Topliff, Esq., is principal of the Law Offices of Mary L. Topliff in San Francisco, specializing in employment law counseling, training, and compliance.

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