FMLA

sunshine state

WE HAVE AN EMPLOYEE WHO WAS GRANTED FMLA LEAVE. PRIOR TO THE LEAVE SHE WAS GIVEN A DISCIPLINARY (SHE REFUSED TO SIGN OR COMMENT) NOT COMPLETING JOB. AFTER SHE WENT ON LEAVE AN EMPLOYEE ASSIGNED TO DO HER JOB FOUND SEVERAL ERRORS AND PROBLEMS. WE ARE A NON PROFIT AND HAVE TO REPORT TO FED & STATE FOR GRANTS. IF WHEN THE MONITORS COME AND IF THEY FOUND THESE ERRORS WE COULD BE FINED. TWO EMPLOYEES HAVE WORK OT (AMOUNTING TO SEVERAL THOUSAND DOLLARS) IN ORDER TO CORRECT AND REPORT THESE PROBLEMS. SHE IS DUE TO RETURN THE END OF APRIL. WE WISH TO FIRE HER. WE KNOW SHE CAN NOT BE FIRED WHILE ON LEAVE. WE ARE IN THE PROCESS OF RESTRUCTING OUR ORGANIZATION AND HER JOB WILL BE ONE THAT IS TO BE CHANGED.ANYONE HAVE ANY IMPUT OR HAD THE SAME PROBLEM? WE ARE AT WILL EMPLOYMENT AND LOCATED IN FL

HRinFL

First, take off the caps lock, it makes your entry harder to read, plus, it makes it appear you are yelling at us.

Secondly, this is an area of the forum that is not commonly used, you need to post this under the FMLA or the Employment Law section. That will get you more responses.

Lastly, what were the errors? Were they similar issues to what the ee was counseled for before she wewnt out on FMLA Leave? Have you had similar issues with other ees? What did you do to them? Were any of them on FMLA or some other approved leave (hopefully no show that you can show that there is no connection with her leave and the decision to discharge)? Do you have documentation from the people that found the errors, what they were, what they had to do to correct them, and what the implication were resulting from the errors? I think that you need to answer these questions before you decide on the level of discipline you are going to take with this ee. Favorable comparables will support the copmpany's decision and assist in defending against any claims the ee may file.

You certainly can discharge an ee that is on FMLA, you just can't discharge them because they are on a protected leave, such as FMLA. IF the decision to discharge is performance related, and you have the documentation to prove the misconduct/performance issues that lead you this decision, then do it. Don't wait for her to return, communicate the decision and start the process to replace her. Same is true if she is being let go in an RIF because the position is being eliminated. Document the reason the position is being eliminated and communicate the decision. You would have to show that her position would be eliminated even if she was not on leave, but you would not have to wait until her leave ended.

Basically, it comes down to past practices and whether you have the documentation to support your decision. If you do, you should be fine. If not, you need to reevaluate and look at other avenues to handle the situation.

sunshine state

Sorry I did the posting in a hurry. The errors consisted of not following through with clients to see if they still needed services. Some were put on waiting list and never looked at again, which allowed other clients to be placed in services. These are elderly and handicap people. Not removing clients who had terminated services in the Fed & state system (reinbursement) which we can be fined for. No one else does this job. Notes were made and never signed or dated. There were 350 files and now it is down to 127. There now a list of 57 waiting services. And yes this ee has been counselled before, a second was done just before FMLA. Yes we have documentation from the other employees. thanks for your input.

Don D

FMLA doesn't protect an employee (even while on leave) from being fired for an offense that would have resulted in termination had it not been for the event of FMLA. If it is your procedure to terminate people who might have been discovered to have committed these ills, ordinarily, then that procedure/policy should apply to her as well, regardless of FMLA.

It would be much more suspect if you were to target her job for restructural elimination upon her return. It would, in fact, be more difficult to explain away the latter than the former.

Brad Forrister

I moved your post to the proper section.

Brad Forrister
VP/Content
M. Lee Smith Publishers

sunshine state

Thank You

Don D

I don't know your reaction to my last post; however, If I were in your shoes, I would send a letter stating something to this effect: During your medically approved absence under the scope of the Federal Family & Medical Leave Act, certain discrepancies and the existence of misfeasance on your part have been discovered in our normal course of business. Those include but are not limited to the improper posting of journal entries, certain accounts languishing uncollected and multiple errors in posting (or whatever). Therefore, in accordance with our standard procedures and policies regarding employees satisfying the duties to which they are assigned, your employment will not be continued and is terminated effective today, March 21, 2005.

sunshine state

Thanks Don I needed someone else to tell me just what I was thinking to do. I have read a lot of your help to others and love all your comments.
Thanks again