I have been asked several times “Can you fire someone the day they return from FMLA?” Naturally, my answer is “It all depends.” To illustrate let’s consider the case of Winterhalter v. Dykhuis Farms, Inc. Briefly, Winterhalter was a supervisor working for the pig farm of Dykhuis Farms, Inc. He was in charge of a critical aspect of their business. He did not perform well in that position. So he was transfered to another location. While working there he slipped and fell and tore his rotator cuff. It needed to be repaired so he took FMLA time. During his absence the market place for pigs fell and the company was forced to conduct a RIF (reduction-in-force), letting go 13 employees. Winterhalter was selected to be one of these on the basis of his personal performance and the reduced need for his presence due to economic conditions. When Mr. Winterhalter returned to work he was informed that he had been RIFed. Naturally he was upset and he sued the company for violating his rights under FMLA and retaliation. The company disagreed with the assertions in the lawsuit and provided evidence of poor performance, salary level, and economic conditions that required the company to reduce its workforce. The company asked the judge to grant summary judgement and he agreed that Winterhalter had no case.
You need to read the case to get the full feel for this and believe it or not it is actually pretty readable and pretty instructive on how situations like this play out. But here is what helped the company win their case.
- Documentation! Not just for the case. They properly documented Mr. Winterhalter’s performance. He was given performance evaluations and was found wanting in a number of areas.
- They worked with him and transfered him to a less critical role. However, performance was still documented as not being at the level needed.
- They had a compeling and documented business reason for the RIF. They economy was such that they did not need the number of people they had previously had. And they had a compeling reason to review salaries to see if they could make economic cuts there as well.
What saved them is the documentation of performance, the fact that they had a compeling and document business reason for the termination and the fact that the employee was not the only person terminated. The judge agreed that because of this the evidence supported the company and not the employee’s claim.
So the answer to the question in the title can now be changed from “It depends” to “Yes, if you have the documentation to back up performance issues, you can show that the person would have been terminated regardless of leave status, and you have the evidence to back up your business decision.”
This is just one more example to show the importance of documentation. It also shows why performance evaluation, often hated by managers and HR people alike, can save you if done correctly.
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