In my years of practicing employment law, I've drafted several employee handbooks and Family and Medical Leave Act (FMLA) policies for employers. The policies I draft are thorough. But just the other week, it occurred to me that I should probably add some language to the effect that supervisors should refrain from recommending the book No More Hysterectomies to any female employee who requests FMLA leave, especially to have a hysterectomy.
That recommendation would be stupider than stupid stupid. And, wouldn't you know it, a company in Ohio appears to have managed to screw that up.
I couldn't make this stuff up if I wanted to. Well, except for the part about the policy revision. That's pure BS. But the screw-up is not.
Plaintiff seeks FMLA, gets RIFed.
I read about this case over at the fabulous FMLA Insights blog. Here are basic facts:
Blessing in disguise? Or viable FMLA retaliation lawsuit?
On these facts, the Court concluded that the plaintiff had presented enough facts for a jury to hear her claim for FMLA retaliation:
She was terminated during her FMLA leave, thus showing temporal proximity between the leave and the discharge. Moreover, a reasonsable jury could view Bryant's repeated remarks to Plaintiff that it was a bad time to take leave, and her suggestion regarding the anti-hysterectomy book, as additional evidence in favor of Plaintiff's view....The Court finds enough factual questions raised in this case regarding the legitimacy of the discipline underlying Plaintiff's RIF score, especially the fact that another employee's discipline in the relevant time-period was not considered in the calculation, such that a jury could find the RIF analysis flawed.
Two takeaways for employers
This article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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