Crystal Spraggins, SPHR
A New Jersey employee is suing her former employer for allegedly violating New Jersey’s anti-discrimination law and the Family and Medical Leave Act.
The employee, Andrea DeGerolamo, claims that her employer discriminated against her when it reneged on an agreement that would have allowed DeGerolamo to travel to and from work while avoiding rush-hour traffic, the stress of which aggravated DeGerolamo’s anxiety and depression.
DeGerolamo also claimed that after taking time off work to treat her medical conditions, she was given a poor performance review (her first), and her regular job responsibilities were replaced with clerical duties. DeGerolamo filed a complaint with her company’s ethics review board in May 2013. Later that month, and without getting a response from the ethics review board, DeGerolamo was fired.
At the company’s request, the lawsuit was moved from state to federal court.
Under the Family and Medical Leave Act (FMLA), employers are required to provide reasonable accommodation for employees with serious medical conditions. And, should an employee take a break from work to care for a sick family member or to care for himself because of his own serious medical condition, the employer is required to restore that employee to the same job or an equivalent upon his return from leave.
What can employers learn from this complaint?
Well, that might be a little hard to say. It’s early days yet, and the employer isn’t talking.
However, a few things do jump out at me.
- Timing is everything. If there’s one thing I’ve learned from reading this stuff over the years, it’s that courts are generally very sensitive to timing. First bad performance review comes after taking a protected leave? Hmmm … Yes, DeGerolamo’s performance could have declined in recent months, and yes her previous reviews could have been less than forthright. But honestly? It looks bad.
- The flip flop is a no-no. Employer, don’t agree to something (in this case DeGerolamo’s new schedule) and then do an about face without explanation. Again, it looks bad. Your organization might be disorganized as can be, with someone agreeing to something he had no authority to agree to, but outside parties won’t care about that. Your dysfunction, your problem. If you make a deal, stick to it unless you’re prepared to present compelling (nondiscriminatory) evidence for the change.
- Abandon your policies at your peril. Firing someone who files an internal complaint before responding to the complaint? I can’t think of too many good reasons to do that. I mean, sure … if, while investigating the complaint you coincidentally discover the employee has committed some egregious act against the company, then okay, you probably have grounds to terminate. But otherwise, see your process through before making your next move. It’s good sense.
And finally, here’s my personal motto when it comes to accommodation requests—if you can, do. It saves a lot of headaches.
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