Tenth Circuit: “Job-Protected” Leave Does Not Necessarily Protect Employees from Misconduct


All Employers with Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming Employees


August 26, 2016


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The Tenth Circuit recently stated that employers can implement disciplinary action against employees who are currently on job-protected leave when evidence of misconduct is discovered during the employee’s leave of absence.

This decision arose from Olson v. Penske Logistics, LLC. Kris Olson, a warehouse manager for Penske, received mixed performance reviews during his time with Penske.  When he went on FMLA leave, Olson’s primary client reported missing inventory.  An investigation discovered that Olson had severely mismanaged his inventory, failed to appropriately train his subordinates, lied about extra work performed for Whirlpool and concealed inventory losses.  Although Penske decided to fire Olson for misconduct, a miscommunication regarding Olson’s current FMLA status resulted in Penske terminating his employment immediately.  Olson filed suit.

The Tenth Circuit denied Olson’s appeal, stating that (1) there was no evidence that any defense offered in court would have saved Olson from termination for his misconduct, and (2) no reasonable jury would conclude that Olson was fired for anything but his substantial misconduct.

The court’s decision follows several other appellate court statements that FMLA does not protect an employee from all adverse employment actions, just adverse employment actions taken as a result of exercising FMLA rights.  Therefore, while employers are prohibited from retaliating against employees for using FMLA leave, employers are still able to discipline employees for misconduct discovered during the leave.

Action Items

  1. Always maintain records of any disciplinary action taken with employees.
  2. If there is a need for adverse action while an employee is on job-protected leave, consider consulting legal counsel.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2016 ManagEase, Incorporated.

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