As a labor and employment attorney, I spend a significant amount of time counseling employers as they prepare to terminate an employee.  Often enough, the situation goes something like this:

My operations people want to terminate Fred.  He has flown off the handle one too many times, and now, we think we caught him misreporting his time worked.  He received a mediocre performance review a few months back -- some good, some bad.  And his problems continue.

But here's the problem: Two days ago, he asked for FMLA leave.  We can still terminate him, right?

The coincidence is uncanny: a request for FMLA leave just as the employee is about to be handed the pink slip.  It's one of the biggest headaches for any HR professional or in-house counsel.  The timing of the request stops the employer dead in its tracks, and rightfully so.  By terminating an employee immediately after he/she requests FMLA, the employer undoubtedly wonders whether it will find itself on the wrong end of FMLA interference and retaliation claims.

All is not lost!  Recently, a federal appellate court determined that an employer lawfully terminated an employee just two days after he requested FMLA leave.  The guidance from the court is instructive to employers handing these kinds of touchy situations.

The Facts

Frank Brown, a customer service operations analyst for ScriptPro, was a mediocre employee.  In June 2008, he received mixed performance reviews, which noted his excessive Internet usage, his lack of respect for personal boundaries in the workplace, and that he was argumentative and abrasive with co-workers.  After the review, his performance issues continued through September 2008.  Notably, he was belligerent toward a customer and failed to complete a critical project on time.

Later that fall, on November 19, 2008, Brown asked for time off to attend his wife's doctor's appointment.  Instead of providing the FMLA leave, however, his employer terminated his employment two days later on November 21 because of "unresolved, previously discussed performance issues."

The Ruling

Plenty of courts have found that the timing of a termination decision -- especially two days after an FMLA leave request -- often is persuasive evidence to establish that the employer's decision may have been motivated by the leave request.  To overcome this hurdle, the employer must "provide[] undisputed evidence that [the employee] would have been terminated regardless of this or any other FMLA-protected request."

Here, the court found that the employer met this burden by pointing to: 1) Brown's mixed performance review; and 2) his continued performance problems after the review in the months leading up to his FMLA request.  Brown v. ScriptPro (pdf)  As a result, Mr, Brown's FMLA claims were properly dismissed.

Insights for Employers

This is a good win for employers in what I think is a really close case on the facts.  What was ScriptPro's key to success here?  Documentation of the employee's performance problems in his review and continued documentation of his performance problems thereafter.  When it comes to effective performance management and defending yourself in litigation down the road, there is no substitute for objective and comprehensive documentation of an employee's performance issues. 

So, ready yourself when you call your employment attorney prior to terminating employee: what documentation do you have to support the basis for your termination decision?  Much more often than not, your success in court will depend on it.