Dive Brief:

• A former helicopter mechanic for The Boeing Company was fired because he violated a "last chance agreement," not because he took Family and Medical Leave Act (FMLA) leave, a federal appeals court ruled (Alkins v. The Boeing Co., No. 20-1233 (3rd Cir., Sept. 23, 2020)).
• Following a series of attendance infractions, Boeing and the plaintiff had agreed to a last chance agreement that said he would be immediately fired if he had two more such infractions in the following 10 months, according to court documents. During that period, the employee took one month of FMLA leave. After the leave expired, the employee failed to return to work or call out; after three days, Boeing fired him, the court said.
• The employee sued and a district court granted summary judgment to Boeing. On appeal, the 3rd Circuit affirmed, finding no FMLA interference because he never notified Boeing that he was unable to come to work. Regarding the retaliation claim, the court said, "it is undisputed that Boeing has provided a legitimate, non-retaliatory reason for terminating him, namely his violation of the Last Chance Agreement."

Dive Insight:

The plaintiff, the Alkins court said, cited case law holding that a closeness in time between a worker invoking FMLA rights and an adverse employment action can create an inference of causation. And experts have, in fact, warned that such temporal proximity can be evidence of retaliation.  

However, employers can successfully defend such claims when they have solid documentation for the reasons behind a negative employment action. Nike, for example, was successful in a lawsuit brought by a former employee alleging retaliation because it was able to show that a "clear pattern" of performance problems existed before she engaged in protected activity.

Experts say solid documentation includes records that are clear, direct and specific and that managers should be provided with training on the most common employer documentation mistakes, such as lack of documentation, vague entries, unclear expectations and sarcasm.

HR may also want to review plans to discipline an employee who has recently engaged in a protected activity for issues such as increased supervision or monitoring, new performance issues, higher standards or expectations, and supervisor complaints about the employee that may be "retaliation red flags."