FMLA lawyers in Colorado

Protected leave does not automatically prevent termination from your job

Employees around the country often misunderstand that protected leave from a job is not an automatic bar from an employer terminating the employee for other reasons. The role of protected leave for a family or medical reason is to protect an employee from termination due to the leave. Generally, employers can terminate, demote, promote, transfer, or otherwise change an employee’s job during or after a protected period of leave under federal or Colorado employment law so long as the motivation for the change is not the employee’s protected leave or the reason for the protected leave. (Assuming no other unlawful motivation exists.)

Employees facing termination or demotion while on a protected leave or immediately following a protection period of leave have good reason to be concerned that the employer’s motives are not pure. Often employers have unlawful motivations that create claims under federal or Colorado employment law for wrongful termination. It usually is not obvious whether the employer’s action is lawful. For this reason, if you are fired during or after a period of leave from your job then you should contact employment lawyers in Denver about potential claims.

Protected leave from your job in Colorado

Colorado employees may enjoy protected family or medical leave for a variety of reasons under state or federal employment law. These laws protect the right to return to work at the same or similar position after a protected period of leave. However, the right to return to work is not absolute under these laws. They only protect the employee’s right to return to work at the same or similar position as though the employee never took leave at all. To put it more precisely, these employment laws protect access to limited periods of leave of absence and prohibit employers from discriminating against employees for requesting, taking, or returning from protected leave.

Laws protecting employee right to leave of absence for family and medical issues include:

  • Family and Medical Leave Act: FMLA protects up to twelve weeks of unpaid leave for care of the employee’s or certain family member’s serious medical condition, pregnancy, childbirth, or bonding with an adopted or foster child;
  • Colorado Family Care Act: Colorado FCA expands FMLA coverage for a broader range of family members;
  • Americans with Disabilities Act: Protects certain medical leave periods as a reasonable accommodation to a disability;
  • Pregnancy Discrimination Act: PDA is a federal law requiring covered employers to allow pregnancy and childbirth-related leave under the employer’s short term disability leave policy, if it has one; and
  • Colorado Anti-Discrimination Act: Provides similar protection for a reasonable accommodation to a disability as well as pregnancy and childbirth-related leave under the employer’s short term disability leave policy.

The length of protected leave under these laws can vary considerably and in the case of long term medical conditions there may be concurrent protection under several laws, such as FMLA, ADA and the Colorado ADA. For this reason, if you find yourself dealing with any problems with family and medical leave in Colorado then you should find a local employment lawyer right away to advise you how to deal with these issues.

Why protected leave of absence laws in Colorado do not always protect you from termination

Protected leave employment laws are designed to protect access to leave of absence for medical and family reasons, not to prevent the employer from conducting other employment practices. It is a common myth that protected leave laws absolutely protect an employee from termination during or around the leave of absence. Employers can discharge or take other adverse employment acts during a protected leave period but risks the employee contacting an employment lawyer and pursing a claim that the employer’s termination or other detrimental act was motivated by the protected leave.

If an employer could never terminate an employee during or immediately after a protected leave period then it would lead to some unusual results:

  • Employees with legitimate disciplinary or performance issues could find a reason to seek FMLA leave or another protected leave to extend the job and force the employer to choose between firing the employee or enduring an expensive employment lawsuit.
  • Employers engaging a reduction in force would have to carve out any employees who are on, about to be on, or recently returned from protected leave from the RIF and target other employees who might be more productive or more senior, which could create other legal issues for the employer.
  • Unscrupulous employees looking for an easy payday could actually perform poorly enough to be on the cusp of a legitimate termination and then abuse protected leave laws to force the employer’s hand to fire them just to pursue a nuisance lawsuit.
  • A new wave of employment lawsuits would arise establishing rules about how much time must pass between protected leave and an unrelated termination which will make protected leave laws less specific and cost a significant figure for both employers and employees in litigation expenses.
  • Good employees who deserve to advance may be held back because the employer’s cost-benefit analysis favors keeping a poor performer with protected leave for fear of a related lawsuit.

This would be a losing proposition for employers and good employees while maybe helping bad employees.

When federal and Colorado protected leave laws prevent your employer from a wrongful termination

An employer generally cannot fire an employee because of the protected leave or protected leave request. That means an employer cannot:

  • Fire the employee in response to requesting or inquiring about taking leave protected by a federal or Colorado employment law;
  • Fire the employee for submitting a valid request for protected leave but insisting the leave request was invalid;
  • Terminate the employee while on protected leave for taking leave;
  • Discharge the employee while on protected leave for not performing material work during a leave period;
  • Terminate the employee after returning from protected leave for requesting or taking the leave of absence.

Colorado and federal employment laws generally prohibit employers from terminating an employee for the sole reason of requesting or taking protected leave or in addition to other legitimate reasons. Sometimes employers have lawful reasons to terminate an employee but are motivated to fire the employee for lawful reasons plus the unlawful reason that the employee requested or took leave protected by law. This is known as a mixed motive claim. In a mixed motive claim the employee’s ability to recover for damages is often limited if the employee cannot disprove that the alleged lawful reasons actually motivated the employer. However, the employee can generally still recover some damages for the employer’s unlawful motivation.

Knowing whether an employer wrongfully terminated an employee for taking a leave of absence

Wrongful termination claims involving leaves of absence can be difficult to pursue because the employer often will rely upon a defense that the discharge was based on a legitimate, unrelated business decision regardless of the truth to that defense. It may not be obvious whether the employer has a legitimate defense or whether the employee can recover a worthwhile sum based upon the facts. This is a good reason to work with an employment lawyer in Colorado to assess your case and help you pursue it.

An employee included in a layoff during a leave of absence is a common source of wrongful termination claims for FMLA and other protected leaves of absence. Employees on a protected leave generally can be a part of a reduction in force so long as the employee’s inclusion is not related to the protected leave. Often employers do not explain why employees become part of a RIF and even when they do there is no guarantee the employer’s explanation is true. Planning for RIFs usually begins months beforehand so it may be possible to compare the timeline of the leave request and inclusion on the RIF list.

Employees may be individually fired during a protected leave of absence outside of a RIF. In these cases the employer’s explanation for the termination normally involves a performance or disciplinary issue with the employee. In these cases the employer should have a documented history of progressive discipline unless the reason for termination is particularly egregious. It may be possible to compare how the employer treated similar employees without a protected leave of absence to see if the employer fired other employees with similar problems.

Hiring employment lawyers for wrongful termination claims in Denver, Colorado

Employment lawyers have experience dealing with these wrongful termination claims and know how to investigate and pursue these claims. In many cases the employment lawyer must assess the potential client’s claims based on access to minimal information and pursue additional documents and information through the discovery phase of litigation. Lawyers with experience dealing with wrongful termination claims under federal and Colorado employment law are best equipped to be able to assess claims early in the process to determine whether it may be worth pursuing to that point.

If you believe you were wrongfully terminated due to a protected leave request then you should find a local employment lawyer right away to discuss your claim. Some protected leave laws require employees to take certain steps within limited time periods to pursue their claims.

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