That question was recently addressed In Stephens v. Neighborhood Service Organization, No. 07-11908, 2008 U.S. Dist. LEXIS 63279 (E.D. Mich. Aug. 19, 2008). In that case, the court opined that an employer may be liable for interference with an employee's right to reinstatement from FM LA leave if the reason the employee is dismissed is connected to her FMLA leave, and even if the reason is not retaliation for the leave. Stephens was dismissed several hours after returning to work from FMLA leave. Deposition testimony established that the employer decided to terminate Stephens when it discovered the remaining employees in the department were able to perform her work during her absence on FMLA leave. The court denied the employer's motion for summary judgment.
Comment: It is well established that an employee has no greater MFLA right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time of reinstatement in order to deny job restoration to an employee seeking to return to work from FMLA leave. According to Stephens,the employer's decision to deny reinstatement must not be connected to FMLA leave usage.
The decision provides a fairly narrow reading of the limitation on an employe4's right to deny reinstatement to an employee on FMLA leave. There are many other cases that have sustained the denial of reinstatement where the employer discovered rule violations during the employee's absence on FMLA leave that would have justified termination. These courts did not require, as Stephens implies, that the employer must establish that it would have inevitably discovered the rule violations independent of the employee's use of FMLA leave as a condition of denying job restoration. It is not clear why the discovery of operational efficiencies during an employee's FMLA absence should be treated differently than disciplinary issues.
Employer's who wish to play it safe should prepare to argue that they would have independently discovered operational inefficiencies and/or disciplinary violations prior to the denial of reinstatement. That is, the employee's use of FMLA leave was not the "but for" cause of the denial of job restoration or discharge. Employee's, of course, will want to argue that the employer would not have discovered the operational efficiencies but forthe employee's use of FMLA leave.
The practical result of Stephens will, in most cases, be an increase in the amount litigation costs and damages at issue. In most cases, the employer will be able to show that, at some point, it would have independently learned of the operational inefficiencies and/or disciplinary conduct. At that point, the employer would have been justified in removing the employee. So, even if the employer was not justified in denying job restoration, it would have been justified in discharging the employee at some point down the line. The temporal interval between the denial of job restoration and the employer's inevitable discovery will likely set the base amount of damages (back pay) at issue.