Remember a few months back when I warned employers to be wary of eliminating the position of an employee who days earlier requested several weeks off for surgery?

Let me take that advice one step further: if an employee informs you that she needs leave to undergo a hysterectomy, don't tell the employee it's "not a good time to take leave," and then urge her to read the book titled, No More Hysterectomies.

File this one under the category of "Employers do inexplicable things that cause them to be sued." Here's a brief summary of the rather interesting facts: Brenda Drew, a stellar employee of 15 years, informed her supervisor at Quest Diagnostics that she would need a leave of absence to undergo a hysterectomy. In response, her supervisor allegedly made the above comments.

While on FMLA leave, Drew found out that her domestic partner had cancer. Shortly thereafter, while Drew was still on leave, a Quest Human Resources staff member contacted Drew to inform her that she would be terminated in a reduction-in-force after Quest lost a significant client contract. Unfortunately, the HR generalist continued talking, suggesting to Drew that the termination might be a "blessing in disguise," as she would have more time to take care of her partner, and that, in any event, Drew "would not be able to give 100% to her job anyway."

Gulp.

Despite these untimely and inexplicable comments, they didn't by themselves do Quest in. Even more compelling to the court was the manner in which Quest chose employees to be terminated as part of the RIF. Drew wisely pointed out that discipline issued to another employee was not used as part of the objective criteria of the RIF, but discipline issued to Drew was one of the factors in her dismissal. This evidence of disparate treatment created doubt about Quest's explanation that it chose employees for the RIF based on performance evaluations and discipline. From the court's perspective, this evidence -- along with the various comments made to Drew -- was enough to allow Drew to present her FMLA claims to a jury. Drew v. Quest Diagnostics, Inc. (pdf)

Insights for Employers

Whether it is negative comments made about an employee after FMLA leave is requested or rating performance differently as a result of FMLA leave (when there is no evidence to indicate as such), employers fail to dismiss a case short of trial typically for the most obvious of reasons. I write the obvious here, but bear with me:

1. When employers use specific, objective criteria in a RIF (e.g., performance reviews, recent discipline, etc.) as they should, these criteria must be applied consistently to examine every employee subject to the RIF. Where exceptions are made (such as counting discipline for some and not for others), they must be documented thoroughly and be defensible so that a court (and potentially, a jury) later can understand, distinguish and accept them. Treating employees in similar situations in a different manner is a recipe for disaster. Assistance of in-house or outside employment counsel is a must in these instances.
2. Mind your communications. As the court pointed out, Quest ultimately may convince a jury that Drew's discipline was compelling and the cause for the RIF. To be clear, by all accounts, Quest disputes that these comments were ever made, and it will have the chance to prove its side at trial. However, alleged comments of the kind here by Drew's direct supervisor and Quest's HR generalist give a reviewing court such an easy basis to allow a case to go to a jury. In any event, these are not the kind of communications an employer wants to present to a jury. Enough said.
3. One issue that troubled me about the court's decision was its suggestion that discipline of an employee with a spotless track record may itself be evidence that something is afoul. I don't buy into this, but it's not the first time a court has provided this kind of reasoning. Does it mean that long-term, stellar employees are untouchable? Surely not; however, in light of decisions like these, employers are well-advised to review discipline of these employees closely to ensure something is not amiss.
4. Please, please, please train your employees on how to effectively and lawfully manage leaves of absence under your personnel policies and the law. (Thanks for the suggestion, Stacy S!) Investing a couple hundred bucks now to conduct effective FMLA training will maximize your chances of saving tens of thousands when the real life situation presents itself.