FMLA Lessons From Wal-Mart: Just What the Doctor (and Court) Ordered

Most of you probably know that you cannot fire an employee for taking leave under the Family Medical Leave Act (FMLA.  Yet cases against employers allege that very FMLA violation. What your employee recently took FMLA leave and you fire him or her for a different reason? Is it OK now?  A number of employers in this very situation, including Wal-Mart, have still found themselves in court. This week The Emplawyerologist’s Wal-Mart series looks for lessons we can learn from Wal-Mart about FMLA compliance–after the jump, of course!

Suppose you own a retail store and you recently promoted Abby, your shelf stocker of 15 years,  to Assistant Manager. Her first performance evaluation notes significant issues. Later that same year, you begin placing her on a Performance Improvement Plan (PIP) for lack of leadership, pushing decisions off on her subordinates, insufficient time on the sales floor, not following appropriate procedures, and lack of professionalism. Unfortunately, do not actually complete the PIP with the required follow-up meetings.  Abby’s next performance review indicates that the deficiencies have, continued. About three months later, Abby informs you she needs surgery. You approve her request for FMLA leave. Five months after Abby returns from FMLA leave, noting that the performance issues persist, you ultimately terminate Abby. Abby sues for FMLA retaliation. What happens now? This is what happened in Langenbach v. Wal-Mart Stores, Inc., No. 14-1022 (8-4-2014). The 7th Circuit affirmed the trial court’s grant of summary judgment dismissing the claim. Wal-Mart having evidence of its valid reasons for termination, did a lot right here. If the employee had shown that she had been performing her job well and was let go after taking FMLA leave,  outcome probably would have been different.

Could Wal-Mart have done more to prevent such a lawsuit in the first place? Perhaps Wal-Mart could have followed up with the initial PIP, including a timeline with specific goals for the employee to meet. If the employee did not meet those goals with in the specified time it could have then terminated her. Assuming all that would have happened before the need for FMLA leave would have arisen, then it would have avoided this lawsuit. Yes, that’s a lot of “ifs”, but there is a point here.While there is sometimes a fine line between giving an employee sufficient chances for improvement, retaining an underperforming employee too long can lead to the type of situation Wal-Mart encountered here.  (NOTE: The plaintiff also included a Title VII claim based on its delay in promoting her and, allegedly paying her less than similarly situated male assistant managers. The court upheld dismissal of those claims as well. You can find the opinion here.

In March, a long-time employee at Wal-Mart’s Collinsville, IL store sued for FMLA retaliation and age discrimination, when, while out on FMLA leave he was replaced by a younger worker in April 2012. The 70-year old employee is seeking damages in excess of $350,000 and claiming emotional distress, pain and suffering, back wages and costs. That case is Bohnenstiehl v. Wal-Mart Stores, Inc. et al, Case No. 3: 2014-CV -00371 (U.S. Dist. Ct. So.Dist, IL). Lessons for employers: a) Train your managers with respect to FMLA; b) Watch your timing! Think before you fire an employee who is on or just returned from FMLA; c) If you must fire an employee on or returning from FMLA, document and have proof of valid reasons for doing so.

Last year in Green v. Wal-Mart Stores, East, L.P.,  WL 3223629 (S.D. Ohio, June 25, 2013)  a federal district court refused to dismiss a department manager’s FMLA interference and retaliation claims. Joyce Green, a 14-year employee at various Wal-Mart stores in Ohio,  took approved FMLA leave in January 2011. Initially, Wal-Mart erroneously marked that leave time as unexcused absences. Wal-Mart has a progressive discipline policy, starting with oral coaching and ending with termination. Wal-Mart also had an attendance and punctuality policy, whereby a certain number of unexcused absences would result in a “coaching”. Wal-Mart also had a meal and break policy, which required employees to take a break if they worked more than 6 consecutive hours. After Ms. Green’s January 2011 leave, she received several coachings. In July 2011, Ms. Green indicated she would again need  time off for a surgical procedure Approximately one week later, Ms. Green received a coaching. Ms. Green received her fourth and final coaching in September 2011, supposedly for failing to take a meal/rest break after having worked more than 6 consecutive hours.  Before taking FMLA leave, Ms. Green had a number of unexcused absences for which she was not disciplined. The court found the discrepancy between the pre and post-FMLA discipline and the proximity of the disciplinary measures to the FMLA requests could support an FMLA interference and retaliation claim.  Lessons for employers: 1) Attendance policies must take FMLA and ADA/ADAAA rights into account, and 2) Attendance policies must be enforced as consistently and uniformly as reasonably possible and 3) Again, watch your timing!

Aside from filing lawsuits, employees can file a complaint with the Department of Labor. An employee at Wal-Mart’s Douglas, Georgia store did just that and received reinstatement to her job, $20,899 in back wages, restoration of benefits and bonuses and deletion of negative references and unexcused absences from her record. After the employee asked for leave to care for her minor child, who had a serious health condition, Wal-Mart terminated her. In addition to job and benefit restoration, Wal-Mart agreed to explore better communication methods between various departments and human resources to prevent repeat occurrences. Lesson for employers: Again, train and communicate effectively with your managers on the FMLA, particularly as to what constitutes an FMLA-qualifying event.

Wal-Mart, to its chagrin, has also found itself sharing employer liability with staffing companies and other contractors. This is known as joint employment. Join The Emplawyerologist next week for a discussion on that topic!

Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.

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