Most employers believe that an employee who is laid off for business reasons has no basis for a lawsuit.  Certainly it is true that an employer can defend its layoff of employees for financial or business reasons, but calling an employee's dismissal "a layoff" is no safe harbor.  Moreover, the fact an employer lays off multiple employees at one time does not necessarily immunize an employee dismissal from legal attack.  Shaffer v. Amer. Med. Ass'n, No. 10-2117 (7th Cir. Oct. 18, 2011), illustrates the point.  There, the employer announced to its employees that future budget cuts would mean employee layoffs and began to select employees to be included in the down-sizing.  Shaffer was not initially selected for layoff.  Before the layoffs were implemented, however, Shaffer notified his employer that he was taking FMLA leave for surgery.  Ten days after the FMLA request, the employer implemented layoffs - including Shaffer in the reduction-in-force -- and keeping an employee who had previously been tagged for layoff.  The manager who made the decision to lay-off Shaffer allegedly said that the decision would not have any negative impact on his team because it had already prepared for his FMLA leave.

The Court of Appeals ruled there should be a jury trial on Shaffer's claims of retaliation and interference.  The Court found there was sufficient evidence from which a reasonable jury could find that Shaffer was selected for the RIF in retaliation for taking an FMLA leave of absence, and to interfere with his FMLA rights.  Such evidence included the manager's comment, the close timing between the FMLA leave request and the down-sizing, and the manager's sudden switch of employees for layoff at the "11th hour."