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What can be done about FMLA discrimination leading to job termination?
Anonymous3 views2 answers
If a person has accepted a severance package and has been told they are "eligible for rehire" but the company is not returning phone calls at all even for qualified positions, is there any possibility of legal recourse regarding the real reason for termination? Without too many details, the employer clearly didn't "like" the fact that he had FMLA (even though they knew he had it when he was hired) and invented a "performance issue" (after 5 years of spotless, perfect performance) -- the severance seemed like a CYA to avoid lawsuit. If that's true, does that mean there's not much we can do?
Stephen M. BergmanEmployment / Labor AttorneySpokane, WA ·
There are Federal laws designed to prevent the retaliatory termination of an employee on FMLA leave. CFR § 825.220(c) allows for lost wages, lost future wages, and double damages if it can be proven that the termination was because the employee utilizied the FMLA. Just based on the information above it sounds like there may be a case for retaliation in violation of the FMLA provision. Additionally, if the employee was on FMLA due to a documented disability, they would have a possible case of wrongful discharge on the basis of disability in violation of Federal Title VII or the Washington Law Against Discrimination.
The spotless employment record would be evidence to use to show that the proffered reason for dismissal, the "performance issue" was in reality pretext for discriminatory and illegal reasons for termination. I would consult an employment lawyer in your area.
Dean Richard FuchsEmployment / Labor AttorneyAtlanta, GA ·
I think the answer depends, at least in part, whether the severance package included broad language which released all claims the employee had against the employer. If so, he cannot sue for violation of his FMLA rights, or retaliation under FMLA, which occurred prior to the date the release agreement was signed. Of course, he could "reapply" for open positions for which he is qualified, and if the company refuses to hire him, it might be a form of retaliation for having previously exercised his FMLA rights. Hard to know. Employee should consult with an employment lawyer in WA who specializes in FMLA.
