A matter of inconvenient timing

Posted March 8, 2018

In order for employees to succeed on claims that the employer terminated them because they requested or took FMLA leave, the termination decision needs to come after the request for the leave.

Such was the case of Earle (fictitious name).

Earle worked as a second shift supervisor in charge of dozens of hourly employees. Earle’s work record was not without blemish. At one point, he had gotten into a verbal altercation with another supervisor over the volume of a radio playing in the break room. Earle’s inappropriate behavior was supposedly witnessed by two of his own employees. Earle was given a written warning.

A few months later, Earle ran into a bit more trouble. He was on his way to work on November 17 when his car ran out of gas. At 1:43 p.m., 17 minutes before his shift was to begin, Earle notified his boss that he would be late. Earle then called Alex (another fictitious name), one of his hourly employees and asked that he bring Earle some gasoline. Alex had already clocked into work, but he left the facility to help Earle without clocking out. Earle and Alex returned to work at 2:46 p.m., at which time Earle allowed Alex to follow him through the supervisor’s entrance after Earle had swiped his badge – a violation of company policy.

To top it off, Earle neglected to adjust Alex’s time sheet in the company timekeeping system to reflect that Alex had been off the premises for 46 minutes while clocked in.

These events were reported to Human Resources, and Earle was called in for a meeting two days later, on November 19. Earle was asked why he allowed Alex to enter the facility without swiping his own badge, and Earle indicated that everyone does it and he had done it many times in the past without being reprimanded. In regard to Alex’s time sheet, Earle said he did not know that Alex had clocked in, but Alex had already told HR that he did tell Earle that he had already clocked in.

Later that day, a decision was made to terminate Earle for the policy violations. They planned to inform Earle the next day. Even later that day, however, Earle asked to go home because his hemorrhoids were acting up. This was granted. Earle did not show up for work the next day (November 20) and, instead, scheduled surgery for November 21. The company’s third-party administrator approved short-term disability (STD) through December 14.

On November 20, the HR Manager learned of the leave, so she could not inform Earle of the termination. On December 1, while Earle was on leave, the HR Manager learned of the STD approval. That same day, she sent a letter to Earle informing him of the termination and indicating that the decision had been made on November 19 and was because of the policy violations.

Earle sued, arguing that the termination decision was made on December 1. The employer, on the other hand, indicated that the termination decision was made on November 19 – before Earle requested leave. The court sided with the employer, in part because Earle never offered a rebuttal to the employer’s argument. It held that the inconvenient timing (at least as far as Earle was concerned) of Earle’s leave request made it impossible for the company to have fired Earle because of his decision to take FMLA leave. Having the letter documenting when the termination decision was made also helped the employer.

Therefore, if you make a decision to terminate an employee, documenting it and having witnesses to that document in the moment can help avoid (or win) an argument.

Ennin v. CNH Industrial America, LLC, Seventh Circuit Court of Appeals, No. 17-2270, December 27, 2017.

Essentials of FMLAJ. J. Keller's Essentials of FMLA manual helps HR pros understand and comply with the FMLA rules, control costs related to leave taken, and minimize the law's potential disruption to their organizations' operations.


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