September 28, 2010

HR policy development, part 3 of 3: attendance and job abandonment under the FMLA and USERRA

Posted in Absenteeism, Employee Handbooks, Family and Medical Leave Act, Job Abandonment, Leaves of Absence, Leaves of Absence, Uniformed Services Employment and Reemployment Rights Act tagged , , , , at 10:55 am by Tom Jacobson

In the first segment of this three-part series, I noted that having and following a well-written sexual harassment policy can help provide an effective defense to sexual harassment claims.  In the second installment, I pointed out how reasonable personnel policies can provide the foundation for defining employment misconduct for the purposes of a Minnesota unemployment claim.  In this final installment, the topic is leaves of absence under the Family and Medical Leave Act (FMLA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA); the case is To v. US Bancorp.

In the To case, US Bank had strict “Reporting Absences” and “Job Abandonment” policies.  The policies required certain call-in procedures and return-to-work documentation.  To missed work for medical reasons and for National Guard service, but he failed to follow the bank’s call-in and reporting procedures, so the bank terminated his employment.

To sued US Bank under the FMLA and USERRA, but the court threw out his case.  With regard to To’s FMLA claims, the court noted that To had not complied with the bank’s policies for reporting absences, and “Employers who enforce such policies by firing employees on FMLA leave for noncompliance do not violate the FMLA.”

To’s USERRA claims were based in part on a portion of USERRA which states that reemployed service members “shall not be discharged from such employment, except for cause” for specified periods of time.  After noting that under USERRA, “An employer has just cause to terminate an employee who does not comply with a known company policy,” the court held that To’s failure to follow US Bank’s handbook policies gave US Bank just cause for To’s discharge.

Read together, the To, Gaustad and Cross cases all underscore the importance of developing and applying effective employment policies.  Such policies not only frame the expecations that employers may have for their employees, but they can also provide important defenses to many employment-related claims.  In sum, developing and applying effective employment policies are crucial to business success.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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