FMLA & RIF

C Wilson

Dave is returning from FML next week . Today his manager asked if he could lay Dave off as soon as he returns. Dave is older and has more seniority than his co-workers. I asked the manager what the selection criteria was for the RIF ? (only one position in his department is being cut) and he couldn't supply it.

During Dave's leave, the manager has made comments that "he just decide that he needed surgery and I have to run my kitchen short staffed."

I know that this is just the beginning of the battle with this manager and I don' t expect support from upper management. Any suggestions on how to deal with this situation?

stilldazed

Because of the way your information is presented, I presume that there is no doubt that FMLA applies to the situation.

Three steps:
1. Research your company's practice to see if there is a precedent.
2. Require documentation from the supervisor looking to lay off the position, and ensure that the supervisor understanding FMLA is an entitlement when all conditions are met and there is an antiretaliatory provision.
3. Discuss with the supervisor whether there were any findings of unexceptable work performance by this individual that surfaced because of the LOA. If so you may have a legitimate reason to make the change, but the reason must be well documented, including that discovery of the issue was made evident by the LOA.

If the supervisor can prove without doubt that the position must go away, then of course the rationale behind selecting which position goes away must be well documented and tied to some change in business. Simply discovering that the department can run effectively without this particular incumbent while this incumbent is on LOA is not enough.

I can't help but question whether the supervisor actually has the authority to implement an RIF and select which positions or incumbents will be let go. In my way of thinking, that may be the real issue, not to mention that your supervisor appears to be in the get-even mode.

best wishes

Susan in La

I would also be very cautious about it being a true reduction in force. If he plans on replacing the guy, it is not a RIF. This screams of FMLA retaliation and age discrimination to me.

NaeNae55

This manager's motivation is obvious and it is illegal. You should do some training here, and fast. Explain the law and this employee's entitilement. Show the manager some case history and how much it has cost organizations who have behind the times managers. His future, as well as the future of your company, is in his ability to catch up with the times.

Good luck!

Nae

Tony Kessler

Nae is right. There is a lot of case history on this subject. If you search the newsletter archives on this website, in 2008 alone, you'll find links to 43 different Employment Law Letter articles that mentioned both "FMLA" and "retaliation." Back in 2006, an Eighth Circuit FMLA retaliation case cost the employer about $300,000. If you need help navigating the search, call me at (615) 661-0249 x 8068, and I'll be glad to help. tk

C Wilson

Thanks! All of your comments just supported what I have already told the manager.

Cherrye