Your Terrible Employee Gets Pregnant or Injured – Now What?

by: Donna M. Ballman
Donna M. Ballman, P.A.
5001 S. University Drive, Suite G
Ft. Lauderdale, FL 33328
(954)680-6300
ballmand@ballmanfirm.com

You have an employee you were getting ready to fire. She just told you she’s pregnant. Do you have to keep her on? Or, a terrible employee announces he needs Family and Medical Leave? Are you stuck with him?

You can fire a protected employee for legitimate reasons under most circumstances. Here are some situations where you can reasonably fire employees.

Performance problems : If you can document performance problems, you can fire an employee even if they are protected from discrimination or are on maternity leave. I always suggest that employers document problems from the beginning, using progressive discipline. Small employers who consider employees "family" sometimes don’t like to be that formal, but will never regret the proof if a disgruntled employee claims discrimination later. If you start with a verbal warning, put a memorandum in the personnel file reflecting the warning. Written warnings should be signed to indicate they were received. More serious or continued problems could result in suspensions with or without pay.

Layoff : Even if you have 50 or more employees and are covered by Family and Medical Leave Act (FMLA), you can lay off an employee on approved leave. If the employer makes a reduction in force while an employee is on FMLA leave, the employer may refuse to reinstate the employee. However, the company may not use downsizing as a pretext to unlawfully terminate an employee. Courts have upheld the pretext argument where the FMLA employee was the only employee downsized, demoted, or denied reemployment after a layoff. The same applies to elimination of an entire shift. It does not apply where the shift or job still exists, but the employee was replaced. The employee must be reinstated to the shift or job if it exists and they are on FMLA leave.

Contract ended: Where the employee’s contract expires while on FMLA, or where the employee was hired to complete a particular project and the project is completed, reinstatement may be denied if the employer would not otherwise have continued to employ the employee. If, however, all other employees in the same situation were hired into new positions or their contracts were renewed, denial of the same treatment may constitute pretext.

License Expired : If the job requires a particular license or certification, and the employee allows that to expire or lapse while on FMLA leave, the employee must be given the opportunity to renew the expired license. If the employee fails to obtain the license within a reasonable period of time, the employer may terminate the employee.

Discovery of illegal activity: If you find that an employee has embezzled, used illegal drugs, or engaged in some other illegal activity or serious misconduct, you may fire them without warning. Just be careful what you say about them and to whom you say it. Unless you are required by law, I suggest that you decline to give a reason for the termination to potential employers.

You don’t have to keep on someone just because they are protected, any more than you can fire them because of their protected status. If you find yourself in this situation, contact an attorney who handles employment law. As an attorney who has 19 years of experience in employment issues, I find that dealing with the problems early is the most effective solution to preventing or winning litigation down the road.