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An employee who was replaced by an outside consultant while on medical leave and later discharged recently won nearly $103,000 plus 100% liquidated damages, attorney’s fees and prejudgment interest for violations of the federal Family and Medical Leave Act (“FMLA”).  This is a costly reminder that employers must take care when dealing with employees who go on leave.

In Bissonnette v. Highland Park Market Inc., an IT employee went on medical leave.  The employer signed a contract with an IT firm to perform work for them while the employee was on leave.  The employer discharged the employee fifteen days after his return to work.  The employee sued, alleging violations of the FMLA and the Connecticut Workers’ Compensation Act.  A jury found for the employer.

The Court denied the employer’s motion to set aside the verdict, upheld nearly the entirety of the jury’s award, and awarded liquidated damages in an amount equal to the jury’s award.  The employer claimed its decision to terminate the employee was not related to the employee taking leave.  The Court was skeptical.  The employer began negotiating with the IT firm after the employee went on leave, and the Court pointed out that the cost savings of hiring the IT firm over retaining the employee was “unclear.”  Based on this evidence, the Court held that a jury could reasonably conclude that the employer interfered with the employee’s FMLA rights.

The Court also held the jury could reasonably have found the employer retaliated against the employee.  The employee’s performance reviews prior to his taking FMLA leave had always been positive.  The employer decided to permanently replacing him with the IT firm only after he had taken FMLA leave.  The Court also pointed out the employer’s explanation for the employee’s termination was contradictory and inconsistent – while the employer maintained the employee’s termination was due to the bad economy and a lack of work, they hired the IT firm to do all of the functions previously performed by the employee at no apparent cost savings.

The Court also awarded liquidated damages.  It explained that courts should normally impose liquidated damages equal in amount to the economic damages awarded by the jury unless the employer can demonstrate that it both acted in good faith and had reasonable grounds for believing its actions were not an FMLA violation.  The Court determined the employer did not meet this high standard.  The employer’s human resources manager admitted he was familiar with the FMLA’s requirements, and the Court once again focused on the timing of the IT firm’s hiring and the employee’s termination.  As the Court pointed out, when the employee was terminated, the employer asked him to sign a severance agreement with substantially longer severance pay and health insurance coverage than another employee who was terminated around the same time as part of the employer’s planned reduction in force.  The agreement also acknowledged that the defendant did not violate any laws, while the other employee’s severance agreements did not contain this acknowledgement.  Though the Court did not explicitly state it, it suggested the employer was aware its actions could be seen as violating the FMLA.  In a subsequent decision, the Court also awarded attorney’s fees and prejudgment interest, bringing the total award to $536,000.

Cases like Bissonnette should serve as warnings for employers.  If you discharge an employee who takes FMLA leave without thoroughly documenting a legitimate reason, you run the risk that a court will find you in violation of the FMLA.  If the timing of a termination is suspect – as in this case, where the employer did not consider outsourcing the employee’s job duties until after the employee went on leave – a court will look askance at your explanation.  If you have a valid reason for termination, do not become the next cautionary tale.  Make sure the reasons are thoroughly documented from the beginning of the process.  If you wait until after the employee invokes his FMLA rights, the timing may look suspicious to a judge and jury.  If you are unsure whether the potential termination of an employee will violate the FMLA, you should consult legal counsel.

Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.