Can you get sued over improper leave administration? The short answer is yes, but it usually requires either mistreatment, discrimination, or a perception of such.
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It can be unnervingly easy for this perception to occur, however, even when the HR and management teams had no ill intentions. It pays to be as consistent and fair as possible when administering all types of leave, including temporary disability leave, FMLA, pregnancy or maternity leave, bereavement leave, or even standard PTO.
Sometimes, despite trying to treat everyone fairly, an employee or former employee may still feel he or she was discriminated against or wrongly terminated. How might this happen? Here are a few reasons:
- Often, leave requests must be analyzed in conjunction with the circumstances, and judgment calls must be made. However, that same flexibility and independent judgment may appear inconsistent. This may happen despite the employer’s best efforts to review each case objectively and make the best decision possible.
- Some absences slip through the cracks and are not counted; alternatively, an absence may be counted against PTO, for example, when it should have also been deducted from FMLA accrual. It can happen easily if there are no processes in place to ensure every absence is counted and allocated to the right leave bank when appropriate.
- Managers are not always consistent in their enforcement of the employer’s policies. This can lead to individuals who work for a stricter manager to cry foul when the same actions by employees is other departments are not met with the same results. For example, perhaps one manager does not always require exempt employees to use PTO when taking time away from work for medical appointments, but another manager does require it.
This is inconsistent and can lead to claims of discrimination. - Some managers also appear inconsistent for different employees or different employee groups. For example, they may require some employees to follow every rule–such as taking PTO for being late, requiring a medical note for any absence, requiring call-ins to be a least X hours in advance of a shift, and so on–but they may not enforce this for every person, every time.
- Employees do not always request leave consistently. This might mean one employee never explains the reason for his or her absences and is later terminated for accruing too many absences and violating the attendance policy. If this employee should have been able to take FMLA leave for these absences—and later realizes this fact—the employee may feel that he or she was treated unfairly by not being given this opportunity before being terminated.
- Intermittent FMLA leave can be difficult to track. This can lead to inconsistent tracking and the perception of unfairness, especially if some employees feel they have to provide more information (medical certifications, etc.) than other employees. Failure to track all instances of intermittent leave can also appear unfair.
- Managers and employees get frustrated with those who must take time off and often end up enforcing the rules more strictly for only those individuals as a result—this can result in an unintended bias. It can even result in a retaliation claim.
- FMLA abuse is not always caught; when it is, the actions taken against the FMLA abuser may appear unfair and spark a lawsuit–even if the employee (or former employee) is in the wrong.
- If an employee is terminated during or immediately after taking a protected leave, that can appear to be retaliatory, even if the termination is completely unrelated to the leave of absence. Employers need to be extra cautious in this situation and have plenty of documentation to support such a decision and timing.
While this list is not comprehensive, it gives us an idea of several reasons how it can be easy for an employee to think he or she was treated unfairly—even if that was not the case. When employees feel they were treated unfairly, employers are at risk. What steps do you take to minimize these risks?
About Bridget Miller:
Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.