Firing a shirker: Do it timely or face the consequences
August 17, 2012
Article courtesy of SBAM Approved Partner ASE
By Anthony Kaylin
When an employee violates an attendance policy and the employer fails to terminate the employee for those violations in a timely way, it can come back to haunt the employer, especially if the employee invokes FMLA rights.
Jamie Lichtenstein began working with the University of Pittsburgh Medical Center (UPMC) in October 2005 as a research associate at UPMC’s Western Psychiatric Institute and Clinic. In September 2007, she transferred to UPMC’s hospital in Braddock, Pennsylvania (“Braddock”) where, less than four months later, she was discharged. During her short tenure at Braddock, Lichtenstein worked as a psychiatric technician under the supervision of Deborah Lidey. Because this was a new position for her, Lichtenstein was subject to a six-month probationary period in which UPMC’s progressive discipline policy did not apply.
At her new job, Lichtenstein was tardy six times, absent twice, and requested changes to her schedule on multiple occasions after the deadline for requesting such changes had passed.
The most egregious incident during this time occurred on December 1st, a day which Lichtenstein was scheduled to work a sixteen-hour shift. In the days leading up to December 1st, two co-workers complained that Lichtenstein was planning to call-off that day if she could not find a replacement. One of these co-workers told Lidey that Lichtenstein claimed she needed the day off to do school work and/or attend a concert. Lichtenstein’s coworkers were upset because UPMC policy prohibited premeditated call-offs, and one of them might have to fill in for her if she did not show up. In response to these complaints, Lidey emailed Lichtenstein for an explanation. Lichtenstein told Lidey she was hoping to take December 1st off because it was the only day she could work on a group project for school. Although Lidey denied this request, Lichtenstein called off anyway, alleging she was sick.
Lichtenstein should have been terminated at that point, but Lidey did not do so. Allegedly, an incident on December 30th was the final straw. It was documented that Lichtenstein arrived at work several hours late and departed several hours early that day. Once again, however, instead of terminating Lichtenstein at that point in time, the hospital did not terminate her until 11 days later, all because, allegedly, Lidey was on vacation until then.
Meanwhile, on January 3 yet another incident occurred. Lichtenstein did not make her shift that day, because early that morning her mother was rushed to the hospital in an ambulance after collapsing from a sudden excruciating pain in her leg. During a phone call with Lidey, Lichtenstein stated that she was in the emergency room waiting for her mother who collapsed earlier that morning. Her mother was not discharged until January 8, 2008.
Now the complication comes in. Lidey terminated Lichtenstein for absenteeism. However, Lidey had received an email from Lichtenstein requesting information about the Leave of Absence policy because of her mother. Lidey claimed not to have seen the email, one of hundreds she receives every day. Lidey allegedly terminated Lichtenstein without knowing about her FMLA request.
Lichtenstein argued otherwise, claiming that her absence on January 3rd qualified for leave under the FMLA, and that UPMC had impermissibly considered this absence in terminating her employment. The District Court granted UPMC’s motion for summary judgment and Lichtenstein appealed.
The Third Circuit rolled their eyes but reversed the trial court and remanded the case to trial. UPMC’s argument held no water as far as the court was concerned, deciding that a jury should review the facts of the case.
First, the court stated that when employees invoke rights granted under the FMLA, employers may not consider an employee’s FMLA leave “as a negative factor in employment actions such as hiring, promotions or disciplinary actions.” Moreover, an employee does not need to prove that invoking FMLA rights was the sole or most important factor upon which the employer acted.
Second, to invoke rights under the FMLA, employees must provide adequate notice to their employer about their need to take leave, but in doing so, the employee “need not expressly assert rights under the FMLA or even mention the FMLA.” The District Court concluded that Lichtenstein conveyed insufficient information to the nursing supervisor to place UPMC on notice. The Third Circuit disagreed.
Finally, the Third Circuit found that UPMC was aware of Lichtenstein’s attendance issues prior to her taking leave on January 3rd. Despite this knowledge, UPMC did not fire Lichtenstein until January 8th. Although UPMC insists that the timing can be explained by the simple fact that her supervisor had been on vacation, the court questioned that timing.
The caveat for employers is clear. Once you know the problem exists, you must deal with it immediately. Otherwise, other complications can set in negating any action taken and haunting the employer for a long time to come.
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