When an Employer Violates Rules for FLMA-protected Medical Leave

Note: This case was handled by Thurgood, Inc. and is anonymized to maintain confidentiality. Each case is unique; this example is not a guarantee or forecast of similar results. 

The Situation

Our client, a project manager in the professional services sector, was terminated after returning from FMLA-protected medical leave. Coincidentally, multiple coworkers had taken leave in the preceding months, prompting a key customer to express their displeasure with personnel turnover. Our client believed that her employer decided not to reinstate her to her previous role — as required by FMLA law — in an effort to avoid another personnel change on the team. She was never again assigned any duties related to her job title, was put on a performance improvement plan (PIP), and was terminated soon after.

The Challenge

In the months before she took medical leave, our client’s team experienced quite a bit of upheaval, and she was assigned a new manager without prior domain experience — a setup that could lead to challenges at any company. Her employer mined this internal dysfunction for anecdotes that they believed demonstrated poor performance by our client.

Our Approach

At Thurgood, we expect most employers to claim poor performance. We simply refocused the discussion on the facts relayed to us by our client:

1. FMLA law requires that employers reinstate employees to their previous role after they return from medical leave.
2. After our client returned from leave, she wasn’t reinstated to her previous job duties. She was never assigned another task related to her role; she had no deliverables, sat in no meetings, and didn’t send a single email related to her client work.

We simply refused to be distracted by the onslaught of accusations against our client’s performance. Instead, we told the employer that they were welcome to explain to the EEOC how our client was able to perform poorly after returning from medical leave, when they hadn’t assigned her any duties to perform, poorly or otherwise, as required by law.

The Resolution

We were able to negotiate a private agreement without filing charges. Her severance package increased from 1 month to 5.5 months’ salary, and included a tax benefit related to her FMLA leave. The negotiation took a total of 2 months.