FMLA LEAVE DOES NOT PROHIBIT DISCHARGE FOR MISCONDUCT

September 17, 2009 at 7:30 am 9 comments

The federal appeals court covering the Midwestern USA has issued an opinion affirming that an employee can be fired for misconduct even though he/she is on FMLA leave at the same time.  The case involved an employer who discovered evidence of serious misconduct (e.g. unauthorized purchases and failure to perform work duties) by a company officer.  The discovery was made while the employee was out on FMLA leave and the company decided to discharge him immediately rather than wait to restore the employee from his FMLA leave first.  The court ruled that the employee’s right of restoration was only as great as his right would be while he was not on leave. Because the employer was able to convince the court that the termination would have occurred regardless of the employee’s leave status, there was no FMLA violation.  Note that the FMLA regulations indicate the same is true for layoffs and other types of terminations, provided the employer can show they would have occurred regardless of leave status.

Acknowledgement and thanks to Mike O’Brien (writer) and Kriss Hess (sender) at the law firm Jones Waldo in Salt Lake City, UT

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Entry filed under: Human Resources (HR). Tags: , , , , .

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9 Comments Add your own

  • 1. RobD  |  October 6, 2009 at 3:21 pm

    Your site was extremely interesting, especially since I was searching for thoughts on this subject last Thursday. 🙂

    Like

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  • 3. RobD  |  October 6, 2009 at 2:21 pm

    There is obviously a lot to know about this. There are some good points here. 🙂

    Like

    Reply
  • 4. JimmyBean  |  October 1, 2009 at 2:36 am

    I don’t know If I said it already but …Excellent site, keep up the good work. I read a lot of blogs on a daily basis and for the most part, people lack substance but, I just wanted to make a quick comment to say I’m glad I found your blog. Thanks, 🙂

    A definite great read..Jim Bean

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  • 6. Tnelson  |  September 30, 2009 at 4:50 pm

    There’s good info here. I did a search on the topic and found most people will agree with your blog. Keep up the good work mate!

    Like

    Reply
  • 8. Robin Aldrich  |  September 24, 2009 at 7:56 am

    I need help finding out what my rights are regarding the fact that I was terminated from my place of employement for medical issues/absence and was in the process of obtaining the needed certification for FMLA from my doctor. My doctor did not supply this information in the time frame required by my employer. I am still having difficulties finding out where my paperwork is with the doctors office and when it will be completed because they are sending the paperwork back and forth between doctors. It has been over 30 days since I saw a R.N. about the migraines and turned in the required documents. When talking with a nurse from the hospital just before I was fired the nurse stated that it was there fault and was very sorry for the problem with the needed paperwork and that I should tell my employer as well that it was the fault of the doctors office. Yet I was still terminated even after informing my employer.

    Please help! I am a single mother of 3 children and feel it is wrong for employer’s to discriminate me due to medical problems. I have never had any problems or complaints regarding my work performance.

    Sincerely,

    Robin Aldrich
    maraco@wi-net.com

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  • […] FMLA LEAVE DOES NOT PROHIBIT DISCHARGE FOR MISCONDUCT « Brad Creer … By bradcreerhrcooks The federal appeals court covering the Midwestern USA has issued an opinion affirming that an employee can be fired for misconduct even though he/she is on FMLA leave at the same time. The case involved an employer who discovered … Brad Creer HR Cooks’s Blog – https://bradcreerhrcooks.wordpress.com/ […]

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