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  • HR Specialist: Employment Law
  • The HR LAW Weekly
  • The HR Weekly


Problems found during FMLA: Is it OK to fire?


What if an employee goes on FMLA leave, and you discover that co-workers have been covering up for her incompetence? Or you find that she wasn’t telling you the truth. As this new case shows, it’s legally possible to terminate her.

Fair investigation all that’s needed to support discharge

Employers don’t have to be absolutely right before disciplining an employee. They merely have to investigate first.

How risky is it to fire a pregnant employee having attendance problems?

Q. An employee has been with us for less than a year, so she isn’t yet eligible for FMLA leave. Last month she missed five days because her child had a high fever. She used available PTO for the time off. Last week, she was no-call/no-show for three days. She told the supervisor she had been hospitalized because of pregnancy complications and didn’t have access to a phone and was sedated. She provided a doctor’s note that released her to return to work, but stated that she may need to be put on bed rest. The supervisor would like to terminate her because we can’t afford to continue employing someone so unreliable. Can we do this?

How to thwart bias lawsuits: Have supervisor who did the hiring also handle firing

Here’s a tip that can help prevent successful termination lawsuits: Set up your system so that the same individual or individuals who make hiring decisions also make the final termination decisions. It will help you prevail in court if the fired employee tries to sue you for discrimination.

Beware firing worker who sleeps with the enemy

Here’s a situation that should send you straight to your attorney’s office. If you fire an employee because you discovered her spouse works for the competition, you may be violating the marital status discrimination clause in the Minnesota Human Rights Act (MHRA).

Waiting to fire slacker? Document your concerns

If you have a poor-performing worker but don’t want to fire him before you have lined up a replacement, make sure you document all the problems—and your efforts to get him up to expectations.

Check records before and after harassment claim

Here’s a tip that could save you thousands in legal bills and penalties: When you are asked to terminate a poor performer who previously complained about harassment, make sure her performance problems didn’t suddenly emerge after the complaint. That could be a clear indication of retaliation.

Feel free to regulate worker conduct in company van

Good news for employers worried about their public image: If you provide carpool transportation for your employees and want to control their behavior while using that transportation, you can.

Restrict FMLA leave info to those who need to know

A frequent tactic for employees who have used FMLA leave and who are fired around the same time is to allege that they were terminated for taking FMLA leave. But those claims fall apart if the person making the termination decision didn’t know about the leave. That’s reason enough to limit access to FMLA leave information to those who need to know.

Court: Years alone won’t define ‘significantly younger’

When someone claims age discrimination, he typically has to show that he was replaced by someone “significantly younger.” What that means is unclear—and courts seem in no hurry to come up with a hard-and-fast rule.