Ah, the Family Medical Leave Act (FMLA). Not only is it every HR professional’s favorite statute, but employees often mistakenly believe it to be a sweeping canopy under which they may hide. Attendance problems? No problem! I’m going on FMLA leave! Bad attitude? Schmattitude! I’ve taken FMLA leave! Performance issues? LOL, duh, FMLA leave!
Unfortunately for employees displaying the above attitude, the NC Court of Appeals burst their bubble in their July decision in Jennings v. Univ. of N.C., N.C. Ct. App., No. COA16-1031, 7/5/17. There, the Court held that an employer did not interfere with an employee’s FMLA rights or retaliate against her by continuing to pursue an unrelated disciplinary action against her while she was on FMLA leave.
The FMLA features multiple protections for individuals, with the chief point among them being that employers are prohibited from interfering with or retaliating against employees for exercising their statutorily-protected rights. Specifically, employers may not use an employee’s FMLA activities as a negative factor in employment actions, like issuing discipline. However, the NC Court of Appeals affirms that if an employer has other factual, non-FMLA-related reasons for issuing discipline, the FMLA does not provide employees with cloaks of invincibility.
NC Court of Appeals Elucidation
In Jennings, the plaintiff worked for Elizabeth City State University’s Information Technology Department. During 2014, she was granted FMLA leave for cancer treatments. During her leave, the defendant contacted her to schedule a disciplinary conference relating to allegations that, prior to her leave, the plaintiff had “...accessed, copied, and stored emails and confidential information…without proper authority or a legitimate business need.” Plaintiff failed to respond to or attend the conference and was terminated for abusing her role as a network server and Microsoft Exchange administrator. She then filed claims alleging that her employer had unlawfully interfered with her FMLA leave by scheduling and holding the pre-disciplinary conference and subsequently terminating her employment.
Siding with the employer, the Court noted that the FMLA allowed an organization to continue with disciplining its employee, even while out on leave. Key here was that the employee’s discipline for her alleged IT malfeasance had nothing to do with her request for or exercise of her FMLA leave rights and was otherwise valid.
Employers may discipline FMLA-taking employees for documented performance issues that occurred prior to, contemporaneous with, or post an employee’s leave request. If doing so, what is most important is that an employer safeguards itself by following its published disciplinary policies and practices consistently regarding all employees, and that any misdeeds are well-evidenced. This enables employers to protect themselves should a FMLA interference or retaliation claim come trolling.
For more information about FMLA compliance, please contact your Advice and Resolution team, CAI's Pre-Paid Legal Services Plan, or peruse myCAI for excellent articles, documentation, and training materials. For reading on a similar case from the 11th Circuit Court of Appeals, check out this post on FMLA Insights by Jeff Nowak.