By Charlie Plumb, JD, McAfee & Taft
Taking action against an employee after she returns from a Family and Medical Leave Act (FMLA) absence can expose an employer to claims of FMLA retaliation. But sometimes it takes an employee’s absence to learn about her performance issues. So how should an employer handle disciplining someone who is returning from protected leave when the misconduct was discovered during her absence?
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Employee’s leave and warning
Cynthia Montoya worked as a fabrication supervisor for Hunter Douglas Window Fashions, where she supervised 55 employees. In 2009, while she was on FMLA leave, a number of her employees complained that she wasn’t available to assist them because of personal Internet use. When Jeff Geist, Montoya’s supervisor, looked into her workers’ complaints, he discovered her personal Internet usage totaled 24.5 hours during a 6-week time period.
When Montoya returned from FMLA leave, Geist issued her a “Final Warning and Improvement Plan,” which directed her to make herself available to members of her team and established performance requirements. Geist specifically addressed her excessive personal Internet usage and warned her that she would be subject to additional discipline, including termination, if the problems recurred.
Although not without a few speedbumps, Montoya’s general performance during 2010 and 2011 was satisfactory. In 2010, Geist evaluated her positively, noting her personal Internet use had declined.
In 2011, he counseled her about “going through the motions, and not showing much engagement in her job.” He also was critical of her complaining about having to cover overtime shifts. Nevertheless, Montoya received another satisfactory review.