Sick Leave Absences Creating a Reason to Fire?

bullard-law2By Bullard Law,
Portland law firm

“This place will fall apart without me.” I think we have all heard words to that effect, whether due to an oversized view of value or as an excuse not to take time off of work for vacation. In today’s (fictional) mailbag, The Bullard Edge responds to a question from Bud Bloom, who handles the human resources function for a local company. Bud’s question deals with a discovery he made when an employee took leave – the company did not need her full time. Bud wants to know if it is legal for the company to convert the position from full time to part-time. Bud’s question and our response follow.

Bud’s Question:

I am the GM at 55-employee Mid-Town Lawn Care. The name is somewhat deceiving. We do not function as a regular yard service company – one that comes to your house every week to cut the lawn, pull the weeds, and trim the shrubs. Instead, we “strategize” regarding lawns and lawn/garden design. This will occasionally involve us in some planting, but not in the ongoing care of what has been planted. It is a high-end service that is not for everyone.

As the GM of a smaller employer I wear a lot of hats. Sometimes I act like a COO; other times I handle HR. Because my roots (sorry for the bad pun) are in garden design, I occasionally still get involved in providing services to clients.

All of this is background for a troublesome issue involving long-time employee Sami. Through early autumn, Sami served the company as the inventory manager. The inventory manager position exists to support the lawn/garden design work by making sure that we have appropriate inventory levels (sod and seeds, for example), that we have the equipment we need, and that the equipment is in working order.

Sami has not worked in the inventory manager position since late September due to an unfortunate series of medical setbacks. She is a keytar player and is very active in the “pop-up” music scene (there is a whole world of music out there). Sami answered an emergency text message (“pop up jazz trio needs keytarist @7pm”). While loading her car for the gig she slipped on her driveway, breaking her ankle and hurting her back. The ankle required surgery; during recovery Sami developed an infection, which became serious. When she eventually improved enough to participate in rehab, she reinjured her back. The bottom line is that Sami has not worked since September.

The company provided her with FMLA/OFLA leave for 12 weeks and has provided her with continued medical leave since the exhaustion of her statutory family leave. Over the past seven months I have covered for Sami in the inventory manager position. I had planned to find someone else to cover as soon as I figured out what was needed, but to my surprise I found that I could do most of my regular duties plus the inventory manager duties. After conferring with the company president in January we decided to make inventory manager a part-time position.

Sami gave us notice that she is finally ready to return to work next week. I will need to sit with her and explain that the position has changed. The company president is having second thoughts. He thinks Sami may be able to claim this is retaliation for family leave or disability discrimination or race discrimination (Sami is Hispanic) or even whistleblower retaliation (she cooperated in an OSHA onsite about 15 months ago). I think we are on solid ground and do not want to pay Sami full time for part-time work. What do you think?

The Bullard Edge‘s Response:

Talk about piling on at the end – family leave retaliation, disability discrimination, race discrimination, whistleblower retaliation – plus you did not even mention that Sami is female. If you had added just one more protected class (such as Sami is age protected) I would have sworn you were just making the facts up. This would have been like the story within a story books that are so popular, such as The Turn of the Screw (Henry James, 1898) with all of its layers (of fiction).

Accepting your description at face value, the short answer is that the decision to convert the inventory manager position from full to part-time appears to be lawful. The Bullard Edge is not going to give you legal advice on this situation, but we will take a generic look at applicable law.

First, whenever an employer makes a decision (such as to hire or fire, to promote, or to eliminate or change a position), the employer should be able to articulate the legitimate non-discriminatory reasons for that decision. The employer should also be prepared to present evidence in support of the articulated rationale.

Second, in the case of Mid-Town Lawn Care it seems that you have articulated a legitimate non-discriminatory reason for converting inventory manager into a part-time position. Specifically, you performed the job duties yourself for an extended period of time and found that full performance of those duties did not require a full time employee. You did not say whether you documented this experience; if you have not done so, that might be helpful.

Third, the fact that Sami falls into at least five protected categories (family leave user, disabled, minority, female, and cooperating with OSHA) highlights the importance of being able to articulate a legitimate non-discriminatory reason for converting the position and for being able to prove that reason with contemporaneous documentation. Absent that support for the decision, an employer is left to scramble when facing allegations of unlawful conduct and it becomes a matter of credibility. Don’t forget: There are a lot of very believable plaintiffs out there who sincerely believe they have been wronged.

Fourth, you will like this. Two weeks ago the Ninth Circuit Court of Appeals issued a decision in Alice Mendoza v The Roman Catholic Archbishop of Los Angeles. In that case a small parish employed Ms. Mendoza as a full time bookkeeper. She became ill and missed ten months of work. During that time, “the pastor of the church took over the bookkeeping duties himself and determined that the job could be done by a part-time bookkeeper.” The position was converted to part-time and offered to Ms. Mendoza on her return. She declined the part-time offer and sued alleging disability discrimination in violation of the ADA. The Ninth Circuit affirmed the district court’s grant of summary judgment to the Archbishop because Ms. Mendoza “failed to raise a triable dispute as to whether the Archbishop’s legitimate, nondiscriminatory reason for not returning Mendoza to full-time work was pretextual.”

Finally, assuming that Mid-Town Lawn Care sticks with its decision, you will want to spend some time explaining the decision, and the reasons for it, to Sami. This is where employers get into trouble. In the absence of a personally communicated direct explanations, employees are left to speculate (and speculation often tends toward the worst motivations) and bad feelings can grow toxic. In other words, remember that HR is both an art and a science and tend to both.

I hope that we have sorted out the issues for you, Bud. Best regards,

The Bullard Edge

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