Discharge After FMLA Leave OK - Briefing - maternity leave - Brief Article

Workforce, Nov, 2001 by D. Diane Hatch, James E. Hall

A my Kohls worked for Beverly Enterprises as its activities director, responsible for planning and overseeing programs and activities for its nursing home's residents. While Kohls was on maternity leave covered by the Family and Medical Leave Act (FMLA), several residents, their family members, and her coworkers complained to Beverly's executive director about Kohls's programming. Under her popular temporary replacement, many changes were made. The executive director also discovered numerous discrepancies in a checkbook used by Kohls to track money containing residents' funds. Upon her return from leave, Kohls admitted to irregularities in checkbook entries to the account, including the fact that she could not explain all the purposes for which funds were used. She was then terminated for misappropriation of funds and poor job performance. Kohls sued, alleging that Beverly failed to restore her to her job in violation of the FMLA.

On appeal, the Seventh U.S. Circuit Court of Appeals held that the FMLA does not entitle an employee to be restored to any job to which she would not have been entitled absent the leave. "The fact that the leave permitted the employer to discover the problems cannot logically be a bar to the employer's ability to fire the deficient employee." Kohls v. Beverly Enter: Wis. Inc., 7th Cir., No. 00-2064 (8/1/01).

Impact: Employers should know that employees who take leaves of absence under laws that provide employees with job-restoration rights remain subject to legitimate, nondiscriminatory termination.

D. Diane Hatch, Ph.D., is a human resources consultant based in San Francisco. James E. Hall is an attorney with the law firm of Barlow, Kobota and Denis, with offices in Los Angeles and Chicago.