Calling employee on FMLA about demotion
Date Posted:
10/27/2021
Key to remember: Employers are not prohibited from ever contacting an employee on FMLA leave. Simply calling an employee to discuss job performance and demotion do not necessarily violate the FMLA.
Applies to: Private employers with 50 or more employees, public employers
Impact to customers: Employers often feel they must be hands off when it comes to employees on FMLA leave but, while they may not require employees to work or otherwise discourage employees from taking leave, they may make contact.
Billy, a team leader, overheard Guia and Paul, two team members, discussing Paul’s upcoming jury duty. Paul and Guia alleged that Billy told them that the best way to get out of jury duty was to say something along the lines of “let’s get the ropes.” The then uncomfortable conversation ended shortly thereafter.
Later that day, Guia told Billy that he thought his comment was inappropriate. Billy apologized.
The apology didn’t stop Paul from reporting the comment to company. An investigation was launched, but because of Billy’s good record, he was coached with no other action.
After the coaching, Guia and Peter noticed that Billy treated them more harshly in performance reviews as well as daily work. After days of this, they reported this subsequent behavior.
This recent behavior raised concerns that Billy was retaliating against Guia and Peter for their involvement in the complaint. Company leaders decided to put Billy on paid administrative leave to allow for further investigation. The investigation resulted in the belief that Guia and Peter were treated differently by Billy after the complaint and investigation. They decided to demote Billy.
A conference call was scheduled for later that day to inform Billy of the demotion, but not before he told his boss about the need for leave. During the call, he told the other leaders that he was on FMLA leave for 12 weeks for a chronic condition.
Billy’s FMLA leave was approved. While on leave, he was informed that his new position was going to be eliminated as part of a reduction in force. He did, however, return to work in that new role until the position was eliminated.
He filed suit alleging that the employer interfered with his FMLA leave by contacting him regarding the demotion while on FMLA leave.
In siding with the employer, the court determined that Billy’s could not show that the phone call to him to discuss the demotion — which occurred on the day his request for FMLA leave was approved — interfered with his ability to exercise his FMLA rights.
Takeaway: Employers may engage in de minimis contact with employees on leave without violating their FMLA rights. Contact with employees should not discourage them from, or otherwise interfere with, the taking FMLA leave.
Blank v. Nationwide Corp. 6th Circuit Court of appeals, No. 20-3969, August 6, 2021.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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