Human Resource Blog

Firing an employee after start of FMLA - Part 4

Hi,

I initially wrote to you back in April about an unusual case where we put an employee on FMLA leave after letting them know they would be terminated at the end of that leave. I hope you remember the scenario. At that time, you noted, in part, that “If this employee filed a complaint about disability discrimination with the EEOC and a complaint about FMLA with the U.S. Department of Labor, it is probable that both of those agencies would sue you. She would almost certainly win a wrongful termination case in California.” Now we have unfortunately found out that you are indeed right on at least two counts. We have learned that this employee is pursuing action through the DFEH and the DOL and that they will likely pursue investigations very soon. This will of course cost us a lot in terms of time and money. My question now is, can she retain an attorney and start a wrongful termination lawsuit at the same time as these two departments are conducting their investigations or does she now have to wait until DFEH and DOL have concluded their investigations in order to have the right to sue using an attorney. In other words, are these three actions independent of each other or does she now need a right to sue letter in order to pursue wrongful termination with a private attorney? We’re afraid that defending these three actions at the same time will put us in a very precarious positon financially.

Thank you.

As gratifying as it is to know that our advice was right, we are sorry to hear about your legal difficulties. You sorely need legal advice — which we cannot provide on this (or any) internet forum. Please contact an attorney specializing in employment law ASAP.

The sad news is, these three issues are independent of each other, even though they result from the same series of actions on your part. The employee can indeed pursue a wrongful termination suit without a right to sue letter on her disability discrimination or FMLA case.

As a lesson to other employers, it is often easier and more cost-effective to return an employee on FMLA to his or her job, rather than face expensive lawsuits.