In Winterhalter v. Dykhuis Farms, Inc., a Federal Court of Appeals recently noted the FMLA has an express requirement that entitles any eligible employee who takes FMLA leave “to be restored by the employer to the position of employment held by the employee when the leave commenced” or “to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.” But, the court further noted that “these provisions do not create a greater right to reinstatement or protection against termination than the employee would receive if he had not taken FMLA leave.”
The Court found that Dykhuis, a pig farmer, produced sufficient evidence to support its assertion that severe economic hardship forced it to eliminate numerous positions and that Winterhalter was the highest-paid, lowest-performing worker at the farm. This evidence included a November 2009 Employee Newsletter that stated that Dykhuis had started a pig reduction plan as part of a long range strategy”; deposition testimony of Winterhalter’s prior supervisors, notes documenting Winterhalter’s performance deficiencies; and Winterhalter’s performance evaluations describing his performance as below standards in three of six categories reviewed. The former employee urged the Court to find pretext based on Dykhuis’ new employee hires; however, upon closer review, the evidence showed that Dykhuis hired six new employees ─ five of which were part-time or seasonal positions as compared to the thirteen terminated full-time employees. Winterhalter also challenged Dykhuis’ economic-hardship claim by pointing to the company’s “moments of optimism,” which included its celebration of “rising hog prices” and announcement that “it looks like we will turn profitable next year.” The Court ultimately threw out Winterhalter’s claim, finding that his evidence, even if true, did not create an issue of fact as to Dykhuis’ claim of economic hardship because Winterhalter did not respond to Dykhuis’ evidence of the bank’s directive, demonstrate that pay disparities and his poor performance did not actually motivate the company’s decision to terminate him or put forth any evidence that Dykhuis actually turned profitable. Turning to Winterhalter’s FMLA entitlement/interference claim, the Court noted that the former employee failed to prove that he was entitled to job restoration. Because there was no dispute that Dykhuis was going through a period of financial hardship at the time it terminated Winterhalter and that Winterhalter was the highest-paid, yet lowest-performing of the three workers at the farm, the court found that Winterhalter did not prove he was entitled to job restoration.
The lesson for employers is simple: Document well, and remember that just because an employee takes FMLA leave, he or she is not insulated from termination or lay-off. The FMLA does not give an employee a greater right to reinstatement or a protection against termination than the employee would get if the employee had not taken FMLA leave. An employer seeking to terminate (or not restore) an employee while on or shortly after returning from FMLA leave is going to need sufficient documentation to justify taking that action. Here, that attention to documentation enabled the employer to win its FMLA case even though it had terminated an employee the day he returned from FMLA leave.
Note: This is a federal case. Before terminating any employee on a protected leave please contact your legal representative to ensure you have all of the proper documentation in place before deciding not to return an employee on a legally protected leave.