Blog Post: FMLA Interference Claims: Alive And Well

As the 10th Circuit explained, "[u]nder this theory, a denial, interference, or restraint of FMLA rights is a violation regardless of the employer's intent." This case hinged on whether the plaintiff's termination was "related-to" her taking leave.

How does this decision impact Colorado employers? Because some things happen with unfortunate timing. Sometimes employers need to let employee's go, before, during or after a leave. If you find yourself in that situation, how can you evaluate the risk associated with what you "must" do? What would a judge or jury look at to determine whether the termination was related-to the employee's leave?

Here are a few things that the 10th Circuit mentioned in this opinion:

• Timing. Did the termination take place while the employee was on leave?
• He Said She Said. What did the employer tell third parites parties the employee's separation?
• Personnel File. What do the performance reviews say? If the employer asserts that the employee was a poor performer, do the reviews support that?
• The Dreaded Emails. What emails lurk in the computers of those who made the decision? Do they extol the virtues of the employee, or support that s/he was terminated because of their absence? Or, do they show that the employee was terminated because they really didn't do the job?
• Policies. What do your policies say? Did you follow them when you terminated the employee, or did you violate them, suggesting an ulterior motive?
• Contemporaneous Documentation. As employment attorneys like to chant, "document document document." Are there documents that support your (the employer's) view of the world? Did you conduct an investigation? Was it biased or conducted by a third party?

Court decisions provide a road map for one particular set of facts. They are not always analogous to your situation, but they can serve as cautionary tales. And they can provide great insight into how a judge or jury would evaluate YOUR quandary.

Sometimes, we need to do what we need to do. But, before you sign the memorandum, before you send the email, it is best to understand the level of risk associated with your decision.

This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

Laura J. Hazen is a Director at Ireland Stapleton Pryor & Pascoe, P.C. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at lhazen@irelandstapleton.com or by phone at 303-623-2700.