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If an Employee Attends a Beyonce Concert While on FMLA Leave, Can She Be Terminated?

By: Jeff Nowak

September 15, 2017

All the single ladies . . . all the single ladies . . . 

Now put your hands up, oh, oh, oh . . . 

Imagine marketing director, Michelle, jamming to this Beyonce song in the middle of AT&T Stadium in Dallas. On that very day, however, she’s supposed to be recuperating at home after suffering a panic attack at work.

Days earlier, Michelle had been given a performance improvement plan (PIP) to address her poor performance. By all accounts, she deserved it, since she struggled with the volume of the work required for her position. Although Michelle agreed that she could not keep up and her performance was deficient, she didn’t think she deserved a PIP.

Upon receiving the PIP, Michelle immediately left work. The next day, she called in, reporting that she was “not well enough to return back to work” and would be filing for short-term disability benefits. Less than one week later, however, Michelle was spotted at a Beyonce concert – in her employer’s corporate sky box.

I’m not kidding.

When word spread that Michelle was at the concert, Michelle’s boss left her a voicemail, asking to discuss why Michelle thought it was appropriate to attend the concert when she was not working. Michelle responded by email that she had not been released by her doctor to meet and that as soon as she was released, she would be willing to meet.

Her boss responded by email, giving her a deadline to respond by later that day. When Michelle failed to respond, she was terminated for three reasons: poor work performance, her attendance at the concert while on leave, and her failure to respond to her boss’ inquiries. As the story goes, Michelle sued her employer, claiming it interfered with her FMLA leave and retaliated against her for taking leave.

‘Cause if you liked work, then you shouldn’t have taken leave
If you liked work, then you shouldn’t have taken leave
Don’t be mad once you get yourself canned
If you liked work, then you shouldn’t have taken leave
Oh, oh, oh
Oh, oh, oh, oh, oh, oh

Insights for Employers

With Beyonce’s “Naughty Girl” playing in the background, I’m sure, the court quickly dismissed Michelle’s FMLA claims, finding that her employer had an honest suspicion that she was abusing leave, and her failure to respond to her boss’ inquiries could only lead the employer to conclude that she was indeed taking leave for reasons having nothing to do with the FMLA. (Jackson v. BNSF (pdf))

Michelle’s missteps actually provide some helpful practical pointers for employers:

1. You can require your employees to respond to your reasonable inquiries while they are on leave. Employers often are gun shy about conducting workplace investigations or taking disciplinary action against an employee while the employee is on FMLA leave.  This approach is understandable, as employers are worried about the appearance of retaliation because the employee may claim (as she did here) that the employer took action on the heels of an employee’s request for FMLA leave.

Yet, this court decision is an endorsement to carry on with your internal investigations and disciplinary measures so long as you can show that you would have done the same absent any request for FMLA leave.

2.  You CAN Terminate an Employee Who Fails to Communicate with you while on leave. Similarly, employers feel paralyzed to take any action against an employee while they remain on leave.

Stop feeling powerless!  

What I love about this court decision is that it reaffirms the principle that the employer was well within its right to terminate Michelle’s employment after she failed to communicate with the employer. The court got it right — when an employee fails to communicate with their employer, they suffer the consequences.

Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012.  Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits.  Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2016) and was also voted the No. 2 Labor and Employment blog by LexisNexis.

The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.

By: Jeff Nowak

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