Q: Rights violation

A: What are your damages? It's one of the first questions an employment lawyer is trying to answer when they speak with you in an initial telephone conference.

Was there an adverse employment action? You were not terminated nor were you demoted with a loss in pay or passed over for a promotion because you took FMLA leave. Hopefully you do not experience FMLA interference which would also be illegal.

Human resources departments make mistakes. Managers also make mistakes. Those mistakes are not necessarily actionable. Employers can, and often do, make mistakes regarding the reasons they terminate employees. And even those mistakes rarely result in recoveries or employees being reinstated unless employees have provable, plausible theories of employers acting maliciously or with discriminatory motives.

Let's take an example which arises more often than employees think.

An employee requests FMLA leave. All of the proper forms are completed and the employee goes out on leave. The FMLA leave employee's job duties need to be covered by other employees. But the employee failed to make sure employees could easily do that and their manager forgot to prepare as well.

Management asks other employees to see what needs to be covered. Either management or co-workers realize that the employee on FMLA leave made errors before leaving. And those errors are not minor or insignificant. HR gets involved and looks into the employee on FMLA leave's performance and confirms that in light of the revealed errors the employee's performance is below the company's new initiatives.

COVID forced the employer to not be as forgiving of on-the-job errors and the tougher performance standards have been applied since the beginning of COVID. Some new managers have even been hired to tighten things up, keeping only top performers who rarely make errors.

The employer wants to immediately fire the employee on FMLA leave in light of the recently discovered errors. The errors should have been discovered long ago but management was sloppy. Not until co-workers began to cover for the employee on FMLA leave did everyone recognize the severity of the errors.

The employee on FMLA leave is terminated on the day they return to work from leave. Is their termination lawful? Maybe. Did the employer have a discriminatory motivation or intent in firing this employee? Maybe and maybe not. Did the employer apply its new practice uniformly for all of its employees effective when COVID began or at some other time? If yes, its new practice might be lawful.

Does the employee who went on FMLA leave have evidence to support that the employer's motivation is unlawful? If not, the employee on FMLA leave's termination on the day they returned to work from leave might be lawful, non-discriminatory, and non-retaliatory.

But we still don't know whether protected health information (PHI) was disclosed? And if it was, what damage did the particular disclosure, whatever it was, cause the employee who went on FMLA leave (those facts were not disclosed in your fact scenario) nor is the relief you would be seeking (are you looking for an apology of some kind, the posting of more FMLA leave notices at the workplace, or other damages of some kind) and what might your theory of recovery be and in what forum would you initiate a potential action?

Employers can make mistakes. Employees without private employment contracts, union agreements or who do not work for the government need to examine potential discrimination claims carefully. Have you explored the job market and possibility of a new employer ? I anticipate that employers will make more errors as the ongoing stress of COVID affects everyone and all of our jobs evolve more rapidly.