In responding to HR That Works Hotline calls over the years, one of the greatest concerns employers express involves handling the situation in which a worker is on leave when the employer discovers their inefficiencies, wrongful conduct, etc. The employers worry about the employee’s argument that any discipline or termination alleging these deficiencies is really masking retaliation for being on ADA, FMLA, or other types of leave.
In Schaaf vs. Smith Kline Beecham the United States District Court in Georgia ruled that the plaintiff’s management style, as well as deficiencies discovered in her absence, led to her being demoted from regional vice president to a district sales manager while on maternity leave. In a novel argument, the plaintiff’s claim went like this: (1) Smith Kline Beecham (SKB) learned of her shortcomings while she was on leave, and (2) the company would not have discovered these derelictions had she not taken leave. Thus, taking leave caused her demotion! In dismissing such nonsense, the court reminded the plaintiff that, “The fact that the leave permitted the employer to discover the problems cannot logically be a bar to the employer’s ability to fire the deficient employee.” Even though the FMLA leave allowed the employer to uncover prior deficiencies does not mean that the termination was because of the FMLA leave. Most telling in this situation is that the plaintiff had very little evidence to prove the motivation of the employer was discriminatory, other than her demotion while on maternity leave.
Lesson: Employers can easily fall into a trap when they discover deficiencies while employees are on leave. If you choose to discipline or terminate the employee because of these deficiencies, you might well face a claim of retaliation – unless you can prove your argument about their deficiencies to a judge or jury.
