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Caution is needed when terminating certain employees

Most employers realize that an employee cannot be terminated or penalized for making a Family Medical Leave Act (FMLA) request. Making a leave request does not prohibit termination if the reasons are independent and unrelated to the FMLA. Employers in Texas should pay attention to a recent Missouri federal court case that illustrates how appearances can lead to actionable lawsuits.

The lawsuit describes how an employee was given a favorable annual review by his supervisor. The employee then announced he was seeking leave under FMLA. As the employee had outstanding complaints from customers, the supervisor looked into the work records of the employee and found them to be inconsistent. The employee was then terminated for filing false records.

A lawsuit was filed, claiming the firing was in retaliation for filing a FMLA. The employer sought summary judgment claiming the reasons for termination were independent of the FMLA claim. The court stated an employee can be discharged for non-FMLA actions but denied the summary judgment motion.

Two factors seemed important to the court. First, the employee had just been given a favorable review. Second, the inquiry into the employee began one day after the FMLA request was made. The court did not determine that the employee's firing was due to retaliation but left the issue for the jury to make the decision.

Many professionals and government workers are bound by a standard to 'avoid even the appearance of impropriety." There are times, however, when an employer can be a bit more judicious in its actions to avoid the appearance of retaliation. When an employer is forbidden from taking action against the employee for making a claim, courts will be skeptical of most adverse actions happening in close proximity to the time of the claim. This includes FMLA, workers' compensation and sexual harassment claims.

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