“The most important thing is going to be documentation,” says Tarun Metha, a labor and employment attorney with Bryan Cave LLP. When employers consider layoffs, including workers who are on FMLA leave, they should make sure that they carefully review the files of workers out on FMLA leave.
“Ask yourself ‘if this went to a judge or jury, would it be convincing or does this look like an ad hoc compilation?’” Mehta explains. If it looks like the employers decided to terminate the worker after he or she went on FMLA leave, it’s not going to be persuasive in a courtroom that the layoff was not inspired by the worker taking FMLA leave.
“If it’s a large reduction in force, you sometimes let go employees who don’t have any performance problems. [In this case,] you’d want to document how you came to that number. You want to look at your statistics and make sure you’re not laying off everybody on FMLA leave or everybody of a certain age group,” says Mehta.
Discrimination on severance packages can also occur when dealing with workers on FMLA leave. Mehta recommends calculating the amount of severance on objective factors, such as seniority or the department’s performance.
He also explains that employers should base the package on the past six months of performance, as those on leave will have less data to contribute. The decision should be pro-rated or should stem from a different calculation.
In addition, while employers can give a larger severance to an employee because he or she is on leave, they cannot do the reverse, Mehta notes. “You can, however, offer them less if this decision is based on documented merit, though few employers elect to do this, as it can be difficult to prove who is owed what in a larger layoff.”
Making measured decisions and documenting an employees’ progress before they go on leave is strongly advised to combat the severe risks associated with unlawfully firing an employee already on leave.
“[Right now] you see a combination of layoffs and desperation…and so the likelihood of increased litigation is almost guaranteed,” says Mehta. Finally, employers should also be familiar with state laws concerning FMLA leave as more often than not these regulations are stricter than the federal baseline.
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