labor lawAdivision of labor law center

In a rare ruling in support of employers, the 7th Circuit Court of Appeals recently found that employers can discipline and even terminate an employee based on problems discovered while the employee is on unpaid leave under FMLA, the federal Family and Medical Leave Act.  

 

The U.S. Department of Labor has long held that an employee on FMLA leave must be returned to his or her job, when the leave ends. However, the department has also repeatedly ruled that an employer can take any action against an employee, that the employer would have taken anyway, had the employee not be on FMLA leave. For example, the employer can terminate an employee for gross misconduct even if the employee happens to be on FMLA leave at the time the investigation is concluded.

 

In short, the employer cannot take any negative job action against an employee solely because the employee uses FMLA leave. However, simply taking FMLA leave does not make the employee immune from lay offs, or from being fired for just cause. This is true, even if the employer discovers the misconduct because the employee is on FMLA.

 

That decision was upheld in the case of Cracco v. Vitran Express, Inc. In this case, Kevin Cracco was a service center manager for Vitran Express, a trucking company in Markham, Illinois.

 

Vitran Express trades on Nasdaq as VTNC and offers a full range of freight distribution services in the U.S. and Canada.

 

While Cracco was on FMLA leave for a serious health condition, the Vitran hired a number of temp employees to handle his responsibilities. During the course of their work, the temps uncovered a number of performance problems that Cracco had hidden during his employment, including undelivered or damaged freight, unresolved customer complaints. They also discovered that Cracco was creating liability for the company by not properly handing overtime payments.

 

As a result of the problems uncovered by the temps, Vitran launched an investigation. When the investigation concluded, Cracco was terminated for poor performance on the day he would have returned to work under FMLA.

 

Cracco filed a suit, alleging that the company was retaliating against him for using FMLA leave. The company contended – and the court agreed – that Cracco was terminated for performance problems uncovered while he was on FMLA.

 

 

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1. Posted by: Gail Holmes

   I work at [employer name deleted] in Raymond, Mississippi. My date of starting with this company is June 24,1986.I’ve been there for 23 years. I am 52 years old and have sever migraine headaches. I have been on FMLA since August 27, 2008. Over this period of time, my supervisor and foreman have been constantly harrassing me about my production of different jobs. I have been keeping a log on everything…time of runs, problems I ran in to that would interfere with getting my prduction and etc. All these years at this job, they have never let anyone in the Press Department know what the production is on any job until they write you up, by then it is too late and they know this fact. I have one more writeup and they will termanate me.Please tell me what I need to do to correct this. I need my job desperately to live my life without fear of losing everything that I have worked so hard for all these years. Thank you, Gail

2. Posted by: Amelia

   Hi Gail! This is a tough situation, but we do have a few suggestions.
   First of all, it sounds like the employer may be rataliating against you because you are using intermittent FMLA. If you believe this is true, contact the US Department of Labor at http://www.dol.gov and file a complaint.
   Be aware that while FMLA gives you unpaid, job-protected time off when you have a migraine, it does not change the performance standards when you are at work. You are expected to accomplish the same amount as any other employee during every hour you work. If you feel your effectiveness is low on a particular day, it may be better for you to take a day off, rather than go to work and perform poorly.
   Having said that, though, it appears that your employer does not have objective standards of performance for employees. Or if they do, they don’t share those objective standards with employees, so workers don’t know what is expected. Obviously, this is poor management. If there is an HR department, you should definitely discuss both FMLA discrimination and objective performance standards with them.
   We like your idea of keeping a log of all projects and any problems with production. If the employer does fire you it is quite possible that you will be eligible for unemployment. You can’t be held accountable for meeting production standards that aren’t objective, or that you aren’t aware of.
   It is also possible that if you are terminated, you would be able to hire an attorney and persue a case for wrongful termination. However, that can be a lengthy and expensive process. Our best guess is that if you file an FMLA complaint with the DOL, this behavior will stop. HTH, and thanks for reading the blogs!~ Amelia