Court Finds Employer May Have Violated FMLA By Laying Off Employee Pursuant to a Reduction In Force
In Cutcher v. Kmart Corp, a federal court of appeals recently found in favor of an employee who had been terminated in a “reduction in force” (RIF) after returning from FMLA leave. The employee alleged that by terminating her employment upon her return from leave, the employer interfered with her FMLA rights. She also alleged that her employer retaliated against her for exercising her FMLA rights by terminating her employment.
In deciding that a jury could reasonably find in favor of the employee, the court of appeals paid particular attention to the fact that the employer had prepared an evaluation in preparation of the RIF which varied substantially from an actual performance review of that employee done just twenty days prior. The employer acknowledged that the employee’s performance had not changed in that short time period. Other factors playing a role in the court’s decision included the fact that the leave of absence was referenced in the RIF evaluation, and the fact that the employer had no documented evidence of prior concern with regard to the employee’s job performance.
While this case does not stand for the proposition that an employee who takes FMLA leave near or at the time of a RIF cannot be laid off pursuant to that RIF, it should serve as a cautionary tale for employers who are conducting a RIF. FMLA leave should not be a factor taken into account when an employer is conducting a RIF. Like many other cases, Cutcher v. Kmart Corp. should raise a red flag for any employee who finds himself or herself being treated adversely (or out of a job) upon returning from FMLA leave.