This content was originally published in April 2010. For the latest FMLA regulation changes, visit our FMLA article archives or try our practical FMLA compliance guide.
During training, make sure managers and supervisors understand the importance of documentation and consulting with HR before terminating an employee. In a recent court case, an employer had documentation to show that it had terminated a worker due to performance issues, despite her claim that she was fired in retaliation for taking leave under the Family and Medical Leave Act (FMLA).
In 1985, “Addison” started working at the Teachers’ Retirement System of the State of Illinois (TRS), which administers the pension plan that provides monthly retirement benefits to about 82,000 retired teachers in Illinois.
She became a Payroll Clerk IV in 2000 and was primarily responsible for enrolling members in an electronic fund transfer (EFT) program, entering EFT information into a database, verifying bank routing and account numbers and responding to change of address requests from beneficiaries.
Initially, she received favorable performance reviews, but errors in her work and increasing absences over time resulted in lower performance ratings. In June and July 2005, she missed 25 percent and 40 percent of her scheduled workdays, respectively. In addition, as of June 2005, she had not yet complied with the payroll insurance manager’s request for her to train employees from other departments on the EFT process.
In late July 2005, the manager informed Addison that he would withdraw his recommendation for her to receive a promotion due to her absenteeism, and he told her to train Data Services Department employees on the EFT process by September 2005.
During that month, several errors within the EFT system were traced to Addison, and because she was absent, other employees had to field complaints from members who had trouble receiving their benefit payments.
In a September 20, 2005, memorandum, the manager summarized a meeting with Addison about her EFT errors, the impact of her absences on other TRS employees, and the company’s decision to move the processing of payroll deduction plan applications to another department due to her failure to process them in a timely manner. The manager again asked her to train employees on the EFT process.
The HR director met twice with the manager and the deputy director of the Benefits Department in the fall of 2005 to discuss Addison’s performance problems and complaints from fellow employees.
After learning that she might be eligible for FMLA leave, Addison applied for intermittent leave for tennis elbow and later modified her FMLA application to request intermittent leave for treatment of ovarian cysts.
In a third management meeting about Addison’s performance, the HR director was told that Addison’s lack of improvement had resulted in TRS failing to get benefits payments to its members, and there was a large backlog of EFT forms that she had not entered into the system on several occasions. The manager suggested that Addison be fired, and the HR director made the same recommendation to the executive director in two meetings about Addison’s performance.
Without any knowledge of Addison’s FMLA leave, the executive director decided to fire her on February 3, 2006. She later filed suit, claiming that she had been terminated in retaliation for taking FMLA leave. The district court ruled for TRS, and Addison appealed to the U.S. Court of Appeals for the 7th Circuit, which covers Illinois, Indiana, and Wisconsin.
What the Court Said
The appeals court affirmed the decision, noting that TRS had documented a decline in Addison’s performance at least 3 months before she took FMLA leave and that she was not informed of her potential eligibility for FMLA until several days after her manager met with her to discuss her absences and EFT errors and wrote a memo summarizing the meeting.
According to the court, the ultimate decision maker (i.e., the executive director) was not aware of Addison’s FMLA leave and did not rely solely on her manager’s recommendation when deciding to terminate her employment. Instead, the executive director also considered input from the benefits manager and the HR director, who had done her own investigation and who also recommended termination.
Addison claimed that TRS failed to follow its own internal discipline procedures, but the court noted that she received several warnings before termination and that company policy allows management “to begin disciplinary action at any step” and that “[f]or certain major violations or continued failure to respond to prior disciplinary action, discharge may be the only recourse.”
Long v. Teachers’ Retirement System of the State of Illinois (No. 08-3094) (U.S. Court of Appeals, 7th Cir., 10/23/09)
- Train on disciplinary procedures. Managers cannot follow disciplinary procedures if they are not familiar with them.
- Stress the importance of documentation. Managers and supervisors need to not only address performance issues, but also document their efforts to rectify problems.
- Provide an overview of the law. Supervisors do not need to be experts on the FMLA, but they do need to understand the basics of the law, including the fact that employers are prohibited from discriminating against employees who take FMLA leave.