FMLA and Termination

PAhr

Here's the short version.We terminated an employee on the basis of a rule violation that according to company handbook could result in this.The employee was on FMLA due to pregnancy.We had wrote the employee up for attendance about three weeks prior to termination.She then filed a complaint with the DOL.We were aware of this because the employee told use.We fired her for the rule violation about two weeks after she filed her complaint.When the DOL investigated the complaint,the investigator also decided to look into the termination as well.After the investigator spoke to the supervisor who witnessed the rule violation he admitted that he had not seen the employee doing this rule violation.We learned of this in November before we filed an appeal on her unemployment benefits.Her initial complaint was also investigated and the determination was that we were not allowed to write her up.We agreed to remove the attendance write up from her record but we had already appealed her unemployment and had used the attendance as well as the rule violation as reasons why she should not recieve unemployment.Were we wrong in appealing her unemploymet for these reasons?Although we knew the rule violation was in question should we have notified the unemployment office after we agreed to remove her write up for attendance?Another word of note, there was something wrong with her unborn child.We learned of this a few hours before we terminated her.The baby had surgery right after birth and is doing well from what we hear through the grapevine.We recently recieved a notice from the EEOC.She is claiming wrongful termination,gender discrimination,retaliation...etc.I'm afraid this is going to turn into a real nightmare.Did we do anything wrong and should we be concerned about this situation?I'm afraid she will use the problem with her baby to gain sympathy.Are we going to look bad?I would appreciate a quick response.Thanks.

santire

[font size="1" color="#FF0000"]LAST EDITED ON 03-31-02 AT 07:06AM (CST)[/font][p][font size="1" color="#FF0000"]LAST EDITED ON 03-31-02 AT 07:02 AM (CST)[/font]

This is the first time I have given the following reply though I have been tempted to do so when the situation seemed appropriate. However, in this situation this reply is particularly important. This type of question does not belong on this forum. Potential FMLA violation? Potential wrongful termination? EEOC involvement? Claim for preganancy discrimination? Claim for gender discrimination? Questions as to the impact on a new born? Etc. You are in the midst of a very serious situation. The only rational advice appropriate is to diectly consult a lawyer and do it fast if you have not already done so. Finding an attorney is one of the purposes of this Forum and that service is for this very type of situation. Of course, other ways to find an attorney also exist though I assume that you have one already. To in any way rely on the guidance you will get from a public forum is dangerous. I find that the replies on this particular forum are typically very well thought out and good. That is why I and many others follow it so closely. Yet in a situation such as yours, you need to concentrate on advice from a particular attorney who has sat with you and investigated the matter to fully explore the case. For one thing, the advice you get here could prejudice you in your perspective of the feedback you get from an attorney who, unlike us that follow this forum, is directly involved. Finally I must add that if an attorney was to give you advice based on nothing more than information you provide on this forum, that attorney would be engaged in unethical conduct in that the premise of the advice would clearly be insufficient. You refer to this posting as the "short version". Only an attorney in a face to face - or on the phone - could help you develop the long version which is merely the beginning for exploring your options. I do not in any way mitigate the insight from non-attorney HR professionals. Yet, your situation is too deeply enmeshed in significant legal issues to disregard primary reliance on an attorney, preferably one experienced in employment law. After all, the very nature of professionalism in an HR professional is to know when to consult an attorney.

awilliams

Santire,

I applaud you for your well-thought out reply. This forum is a very good place to share information, insights, and experience. However, none of the opinions here can, or should, take the place of legal advice.

On our website, we have a tool to help readers find an attorney in their home state. I encourage the previous poster, and other users, to make use of that tool and seek out the legal advice that they need.

Take care,

Anne Williams
Attorney Editor
M. Lee Smith Publishers

PAhr

We have obtained legal counsel.I just wanted to know if anyone would have handled this situation differently,from an HR perspective not a legal one.And why?I really don't want to make this same mistake again if in fact it was one.The only thing I left out in the story was that we knew of the rule violation for almost two weeks before termination.Our handbook calls for an "investigation" confirming the violation before termination.We did that but our investigation only involved speaking to the supervisor as we just figured she would deny it.I am the low man in the totem pole and I personnaly did not feel the situation was proven beyond ony doubt based only on his say so but my boss made the final decision.My qeustion is how exactly should we handle these investigations?We trust our supervisors that is why they are in their position but should we have asked her or any other person involved before we made the decision to terminate?If anyone has their own investigation policy I would love to hear it.

Theresa Gegen TX

I would always get the accused's side of the story -- even if you think he or she will "just deny it." You would be surprized at how many times that isn't the case -- and the person actually admits the misconduct while giving an explanation. (Something like, "Yes, I was late to work again, but traffic was bad and it wasn't my fault"). That admission can really help you out in defending against a legal claim. Or the accused may say "this supervisor has it in for me because I would not sleep with him" (ETC). Wouldn't you rather know about that type of issue before the employee is fired. The employee may also give an excuse that you will agree with (for example, in one case I had the supervisor was sure he saw the employee fake her timecard, because she punched out and in immediatly for lunch -- when we got the employee's story, it seemed that she had worked through luch, but the supervisor had told her earlier that she must have four punches on her time card a day. In order to get the four punches, she punched out and in immediatly. That explanation was accepted by the employer, and she was not fired [But she was counseled on proper time card procedure]).

Juries will look closely at whether the employer gave the employee due process. Here, I could see a lawyer for the employee making the point over an over again in front of a jury, that the company didn't even take the time to get her side of the story. And if they had, she would not have been terminated.

Also, investigation of the facts (not just conclusions) behind the supervisors story can help avoid a later change in story. Most people talk in generalities and conclusions, but when an employer is making the decision about termination, it must get the facts. This requires questioning everything the witness says (Did you witness it yourself, were you present the whole time, etc). Although the witness may get impatient, oftentimes you will find that the initial "facts" are not the true "facts."

Finally, in a case where you later find out that the employee did not do the misconduct, consider offering the employee her job back. This can be done as an unconditional offer of reinstatement, and in many jurisdicitions will cut off future damages if not accepted. Your attorney can tell you if it would be worth while in this situation.

Good Luck!!

PAhr

I am not sure a job offer at this point would really help our situation.She has been gone almost a year and she has a very good attorney(he put use through the loop at the unemployment hearing).I think he would advise against it because it"would not be a good environment for her".If we offer the job back can she still sue for all the above mentioned reasons?I am not worried about payment of lost wages it is the other issues that scare me.I would try to get my bosses to agree if it would bar her from suing for those reasons.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 04-02-02 AT 12:54PM (CST)[/font][p]I like Theresa's response as well as the great advice of the first responder, above. There is absolutely no substitute for the timely, complete and thorough investigation. I'm afraid it sounds to me that the investigation was hurried and otherwise not complete and conclusive. I am by no means affiliated with them, but, Council on Education in Management has a guidebook titled "How to Conduct An Internal Investigation" That I began using as a tutorial back about 94. I'm sure this forum also has other leads to such training and guide books.The poster has asked for feedback on what he/she might have done differently, so I will list just a few things I see that went wrong. (1)Untimely termination, (2)very non-thorough investigation (The plaintiff attorney's dream)and (3) what on the surface appears to be footdragging in getting competent legal advice while your company was focused perhaps on saving a few bucks the attorney might charge. I imagine that your attorney by now is recommending settlement. Your last question was "Are we going to look bad?" I am trying to think of a kind way to answer that question.