Employment Counseling and Litigation

Termination Upon Return From Protected Leave

A federal appeals court recently found that an employer’s decision to terminate an employee the day she returned from maternity leave was not discriminatory.  During her leave, the employer discovered both substantive deficiencies in the employee’s performance and falsifications in her employment application to the company.  The appeals court concluded that the timing of the employer’s termination was “unfortunate.”  Still, the court found “no fault” in the employer’s decision, and noted that it had “no authority to interfere in” a justified personnel matter, “however unwise or unfair” it might seem to be.

The decision reinforces the idea that taking a protected leave does not insulate an employee from termination in all cases.  However, the case also is a reminder that the perceived unfairness associated with a termination so close in time to protected leave often will result in a lawsuit.

Employers should be very cautious when considering the termination of an employee who has taken a protected leave or if they have engaged in other protected activity.  Where an employer has a good reason for termination that is supported by clear objective evidence, an employer may consider a termination during or immediately after protected leave.

However, be mindful of two other points:  First, employee performance deficiencies alone rarely, if ever, will be a justifiable reason for termination immediately following return from protected leave.  Don’t be distracted by that part of the decision.  Second, even with objective evidence, such as the falsified employment application in this case, an employer could still be liable for discrimination or retaliation if, for example, other employees who had engaged in similar behavior were not terminated.  You have to evaluate each situation carefully.  The costs of a trial and appeal would be very high.

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