- An employee out on Family and Medical Leave Act (FMLA) leave isn't immune from discipline for misconduct discovered during leave, a federal appeals court has ruled (Balding v. Sunbelt Steel Texas, Inc., No. 16-4095 (10th Cir. March 13, 2018)).
- Robert Balding worked as a steel salesman for Sunbelt Steel Texas Inc. While on leave, his supervisor monitored his email and discovered that Balding had told a customer that the customer’s order was being rushed through when it had not been entered into Sunbelt’s system. When asked, Balding denied having told the customer that the order was in process until the supervisor revealed that he had reviewed Balding’s email. Balding was fired based on that lie, as well as other customer complaints and shortcomings. Balding sued, alleging that the employer interfered with his FMLA leave.
- The appeals court upheld a lower court's order in the employer's favor, noting that there was no question that Sunbelt honestly believed Balding had misled it about the status of the order and then lied about it when confronted.
Employers are understandably wary of the FMLA's interference and retaliation provisions, but courts continue to find that employers are free to discipline workers for misconduct discovered during leave. This is even true when the discovery would not have happened but for the leave — such as when a supervisor takes over an employee's email during the employee's leave.
After all, the opposite conclusion would provide a "laughable result," another appeals court has noted (Schaaf v. SmithKline Beecham Corp, d.b.a. GlaxoSmithKline, 602 F.3d 1236 (11th Cir. 2010)). "These employees could take leave and actually hope their employers uncover evidence of their transgressions while they are away. If such evidence were revealed, the statute would prevent their employer from ever taking adverse action against them, as the leave would always be the but-for cause of the discovery of that evidence," the 11th Circuit said. "Such a laughable result is not supported by policy, by common sense, or, most importantly, by the statute itself."