Some employers believe that an employee who is out on FMLA cannot be disciplined or terminated. More savvy employers know that such a broad application is not quite accurate, as an employee’s request for or taking FMLA leave does not give the employee any greater rights than if the employee were actively at work. This case, here, is a prime example.

What happened?  The employee requested leave for birth of her child, and the leave was granted. While on leave, however, the employee visited the employer’s premises. While there, she took home 6 cases of sample baby formula (yes, the employer produces baby formula), and doing so was a clear policy violation (think – stealing). A co-worker reported the misconduct, and an investigation resulted in the employee’s termination. The employee then sued, claiming that she was terminated while on FMLA leave and thus the termination was unlawful.

The Court disagreed and granted the employer summary judgment, dismissing the case even before a trial. The employee claimed that other employees had likewise taken samples, but the Court noted that the employer was not aware of such misconduct on the part of others and had disciplined employees who had engaged in similar conduct of which it was aware. The employee claimed that a manager’s remark (“I thought you were done having babies”) when she requested leave showed a retaliatory motive. The Court disagreed, calling it no more than a slight, which is not sufficient to raise a retaliatory motive, and certainly not sufficient to overcome the employer’s asserted reason for termination.

Lesson?

  • A leave under the FMLA does not insulate an employee from the consequences of misconduct if the employer would have taken the action anyway, regardless of the leave.
  • Proceeding with an investigation into the misconduct while the employee is on leave is often the better option rather than awaiting the employee’s return (or announced return) and then beginning the investigation.
  • The employer had enforced the policy violation consistently, a key element.
  • Note that the violation was not one sample can, but rather 6 cases (36 cans). While arguably irrelevant from a technical standpoint, the amount of sample taken was likely significant from a practical standpoint.