On November 19 I wrote a post called The FMLA and an “Honest Belief”. In that post I told you about terminating employees on Family and Medical Leave, generally a “no-no”, but if an employer has an “honest belief” an employee was not using the leave for what it was originally intended. You will have to read that post to better understand it. However, apparently California courts don’t believe in “honest belief” when used by an employer.
Not a defense
According to an article on the SHRM website “…a California appellate court has ruled. Instead, the employer had the burden of proving that the employee had in fact abused his leave rights by working while on leave, in violation of company policy. Neither the employer’s good-faith belief nor its lack of intent to violate the CFRA was relevant, the court concluded.” (CFRA is the California Family Rights Act) The case involves an employee taking leave for a back injury. His employer heard he was working at a restaurant he owned. The employer went to investigate and saw him working with no apparent back injury. So they fired him for violating the policy that prohibited working while on CFRA leave. The court said the company had not properly communicated, investigated or documented in this particular situation. So the employee gets his job back.
What should have been done
According to James Parton III, an attorney with Parton Sell Rhodes here is what the employer should have done:
- Communicate the policy clearly to all employees and making the rules unambiguous;
- Investigate thoroughly and get evidence;
- Ask the employee what they hell they are doing…. Well actually I paraphrased his advice, he said ask for an explanation;
- Consult an attorney (of course, that is a standard phrase);
- Lastly, DOCUMENT, DOCUMENT, DOCUMENT. So many problems would be solved if more employees did this.
The major take-away from this is that before you make any decision on any Federal law make sure there is not a state law (or other local jurisdiction) that trumps the Federal law.
The second take-away is the importance of documentation. That applies to all aspects of HR. In today’s world you just cannot get away from it.
Note: The link to the SHRM article was not available to non-members.