FMLA Discrimination Charge

dkay

I have an employee who has been with my department for almost 2 years. Since the time of their employment w/ my company, there have been constant issues with perfomance, relationships with peers, and absences due to illnesses on the employee's part and for the employee's children. This employee requested and was awarded FMLA benefits due to a chronic illness regarding their child. The leave was intermittent and I didn't know from day to day whether or not this person would be absent. My company handles massive volumes of work and a desk can not go unattended for more than a week without major issues arising. After a couple of weeks of constant absence, the workload was redistributed to other staff members to ensure a certain level of flow. During this time, perfomance issues that were believed to have been corrected were still an issue. This employee had been retrained numerous times and had assured me that the "light had come on" and they understood where they were going. This is where the discrination allegation comes into play. There was a day where the employee was there for the entire day but it just so happened that it was a fellow employee/friend's last day on the job. Whenever I leave my office I have to walk past this person's desk, I must have walked past at least 15 times. Each time the following happened: this person wasn't at their desk, they were at the friends desk chatting, on a smoke break, or making personal calls on their cell phone for the friend that was having financial issues. I happened by the desk again, frustrated with the fact that no work was getting done and they were still socializing, and asked if this person if they "needed weekend access to get caught up on anything" since they hadn't gotten much done today I made the assumption that would be the case. I was told point blank that this person didn't need to make up any time since they were gone for the child's illness and FMLA covered this absence. I stated that I just wanted to make sure the work was getting done and left (all of this was before the redistribution of workload). A complaint was made that I "embarrassed" the employee in front of their peers and it was taken to HR.
The employee didn't return for weeks, daily calling in stating that they wouldn't be in. After I had been made aware that the performance issues still existed, I made attempts to document what the issues were. The employee came in after hours, with no supervision, and processed information that others in the department were handling. They didn't inform me or anyone else that they would be coming in to work. I called them and let them know that they needed to talk to me and let me know when they would be in the building and that I had issues with performance and they were to talk to me before any processing took place.
Long story short, believe it's even more involved than this, I'm being discriminatory because this employee in on FMLA and this charge has been taken to our HR department.
My question is, if I had made prior attempts to correct performance issues and was led to believe that everything was understood only to find out that the same issues continued, addressing these issues is discriminatory because this person is covered by FMLA?

bethann

Documentation is the Key. Did you document any past performance, absent, and other issues? Also look up your company policies on the after hour work and what type of approval is needed. I would go sit down with your HR person and have a private meeting to discus your concerns, and what you can do legally and within the guidelines of your company policies. If you suddenly start writting up the ee where they had no write ups previously, then that ee could state discrimination, and that your causing work distress.

LindaS

I agree with Bethann - document, document, document. If you have already done this, bring this documentation with you when you meet with HR so they are aware of the history. This employee needs to be made aware that simply because she has been approved for FMLA does not give her ultimate freedom to work when she chooses and not follow the current guidelines and performance expectations of the job. As far as her being "embarrassed", if she would have been doing her job there wouldn't have been any need for you to say anything to her about weekend work. If she's not getting the work done due to the amount of time off, you may want to look at moving her to a position where her absence won't be a crucial to the company.