Using COVID-19 as a termination reason? Be sure it’s factual
Posted September 24, 2020
Many employers go beyond what’s required by law, but they need to do so with care and consideration. One company had a policy whereby it allowed employees to take more leave than is required under the FMLA. The problem was that it did not communicate that taking the extra leave provided no job protection.
An employee, we’ll call her Shannon (not her real name), took that extra leave, and when she returned to work, she found — eventually — that she no longer had a role at the company. When she lodged a discrimination complaint, she was terminated. The company claimed — in part — that the termination was related to COVID-19. The employee claimed that her leave was the reason for the termination.
The complaint indicated that Shannon tried and tried to find out about returning to work but was stymied at every turn. This went on for months, but she was repeatedly told she was not slated for termination. She was also told not to worry and that her job was secure. Yet she was shuffled from person to person and never got a straight answer to her inquiries regarding her job, either the one she had before leave or any at the company. She was assigned a couple of projects, but not commensurate with her skills.
She finally indicated to a company representative that she was worried that being on maternity leave was going to hurt her. She got no response. At one point her old manager indicated that she would never rejoin his department and that she was transitioning to another department. The other department, however, indicated that she had not been transitioned and never would be.
After complaining, a zoom meeting eventually took place where Shannon was terminated and told it was related to COVID-19 and was not performance related. Shannon expressed her belief that the termination was likely in relation to her complaints that went back to her leave. She subsequently sued. Now the company is facing a potential class action because the policy affected all women who took leave under the policy.
The case has recently been filed, so the outcome won’t be known for some time. The employer, however, will now need to spend resources defending its actions. The claim can, however, provide some interesting lessons.
- Communicate repercussions in relation to leave policies that go beyond the law. This company touted and promoted its leave, but never told anyone that taking the leave risked termination.
- Don’t tell employees their job is secure when it is not. Leading employees on can frustrate employees, which can inspire them to become plaintiffs.
- Have strong, documented, non-discriminatory reasons for a termination. This termination was not performance related, but the employer seemed to have a hard time providing a logical reason.
- Don’t try to blame a virus when the real reason is not a virus. Providing shifting and different reasons for a termination supports a pretext claim. The reason may have been related to the virus, but the employer’s reasons were suspect, including that her position was eliminated when it was not.
Friends, be careful out there. While having robust benefits can have many positive results, be sure they do not result in lawsuits. In case you want to watch this case, it’s Knight v. Deloitte Touche Tohmatsu Ltd., et al., in the Southern District of New York, No. 1:20-cv-07114, filed 9/1/20.
This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.