• FMLA Does Not Protect From Disciplinary Action Unrelated To The Leave
  • August 18, 2017 | Authors: Eve B. Masinter; Rachael M. Coe; Jerry L. Stovall; Murphy J. Foster; Jacob E. Roussel; Leo C. Hamilton; John T. Andrishok; Joseph R. Hugg; E. Fredrick Preis; Rachael Jeanfreau; Melissa M. Shirley; Steven B. Loeb; Sunny Mayhall West
  • Law Firms: Breazeale, Sachse & Wilson, L.L.P. - Baton Rouge Office; Breazeale, Sachse & Wilson, L.L.P. - Baton Rouge Office
  • The Court of Appeals of North Carolina held that an employer did not interfere with an employee's FMLA rights or retaliate against her by scheduling a disciplinary hearing while she was on leave. Elizabeth City State University hired Crystal Jennings in January 2010 to work in the University's Department of Information Technology. Jennings, who was fighting cancer, applied for and was granted FMLA leave in January 2014. During that leave, the University contacted her to schedule a disciplinary conference related to prior allegations that she had "accessed, copied, and stored emails and confidential information...without proper authority or or a legitimate business need." When Jennings failed to attend the conference, she was fired for abusing privileges as a network server and Microsoft Exchange administrator. As a result of her firing, Jennings filed claims against the University with wrongful termination allegations of FMLA violations and North Carolina's whistleblower protections violations. She claimed that the University interfered with her FMLA by holding the conference and subsequently terminating her. However, to make an interference claim under FMLA, an employee must be able to demonstrate three things: (1) that she is entitled to an FMLA benefit; (2) her employer interfered with the provision of that benefit; and (3) that the interference caused harm. This does not mean that an employer cannot discipline or terminate an employee for poor performance while that employee is out on FMLA leave. The Court disagreed with Jennings' claim that the interference was the scheduling of the disciplinary conference during her FMLA leave, rather than interference of her use of FMLA leave. Employers should note that while the Court agreed that disciplinary action for poor performance prior to FMLA leave was acceptable, employers should keep well documented examples of that poor performance to avoid an FMLA retaliation or interference claim.