An employee who takes family and medical leave is generally entitled to return to the same job or an equivalent one at the end of the leave. But if you downsize while the employee is on leave, is this person’s job protected? A new California Court of Appeal case looks at this question—and how your own employment policies regarding family and medical leave may affect your obligation to keep an employee on during a reduction in force.
Employee Gets Pink Slip
When Lona Tomlinson applied to be manager of business development at Qual- comm Inc., the job application stated that employment would be at-will. Tomlinson also signed an employment contract that reiterated her at-will status, and Qualcomm’s personnel policies stated that employment was at-will.
A year later, Tomlinson requested a six-week maternity leave followed by a three-month family leave during which she would work a reduced schedule. On approving the request, Qualcomm gave her a notice stating that as long as she returned to work before her family leave entitlement expired, she would come back to the same or an equivalent job.
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While Tomlinson was still on leave, Qualcomm initiated a company-wide workforce reduction. Qualcomm selected employees by ranking them on skills, performance and importance to the company. Tomlinson received the lowest possible rating and was laid off.
Employer Hit With Lawsuit
Tomlinson sued Qualcomm. She argued that the reinstatement guarantees of the California Family Rights Act (CFRA), which is similar to the federal Family and Medical Leave Act, barred Qualcomm from terminating her through a RIF while she was on leave. She also contended that statements in Qualcomm’s personnel policies regarding return from family leave created an unwritten promise of continued employment. Qual- comm countered that Tomlinson didn’t become immune from layoff simply because she was on leave.
Employee On CFRA Leave Not Safe From Layoff
The California Court of Appeal threw out Tomlinson’s case. The court explained that under state and federal family and medical leave laws, the guarantee of reinstatement to the same or a comparable position doesn’t preclude an employer from terminating an employee in a workforce reduction. That’s because employees on leave are entitled to the same rights they would have if not on leave—but not greater rights than other employees.
The court also ruled that Qualcomm’s personnel policies regarding reinstatement after a family leave didn’t alter Tomlinson’s at-will status. That’s because an unwritten promise of continued employment cannot supersede a written at-will agreement. Plus, Qualcomm’s personnel handbook only assured reinstatement to the extent required by law.1
Practical Pointers
Here are pointers for managing layoffs involving employees on family and medical leave:
- Use objective standards. To help avoid charges that your selection decisions were biased, use clear written standards for choosing employees for layoff. Also, have more than one manager review sensitive layoff decisions.
- Maintain documentation. Keep detailed records of the layoff selection process and why you picked one person over another. If an employee later claims they were selected for an improper reason, such as because they took protected leave, you’ll be prepared to explain your choices and demonstrate that your decision was impartial.
- Reiterate at-will policy. This case demonstrates the importance of having a clear at-will policy. Spell out the policy in employee handbooks and have employees sign an acknowledgment of at-will status in application forms, written job offers, employment agreements or a stand-alone document. Specify that the person’s at-will status can only be modified in a written agreement signed by a company officer. And state that the at-will provisions will prevail if other personnel policies—such as leave policies or layoff procedures—conflict with an employee’s at-will status.
- Avoid reinstatement guarantees. Be sure your leave policies and any notices provided to employees about family and medical leave don’t guarantee reinstatement. Instead, state that your policies provide for reinstatement only to the extent that the law requires.