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How to avoid litigation when laying off employees on FMLA leave

On Behalf of | Feb 10, 2023 | Business Litigation

Business owners look to avoid business litigation whenever possible. Unfortunately, in bad economic times, sometimes, businesses are forced to layoff some of their employees. Some of these employees may be on Family and Medical Leave Act leave. However, if that is the case, how can a business do this and avoid Egg Harbor Township, New Jersey, business litigation?

First issue, is it legal?

Before getting into the issue of avoiding litigation, the first issue is whether laying someone off on FMLA leave is legal. And, it can be. FMLA leave is only designed to protect an employee’s job that exists. If an employee’s job is eliminated, unrelated to their FMLA leave, their FMLA leave does not protect that job. FMLA regulation 825.216(a) specifically states as such.

FMLA regulation 825.216(a) shifts the burden onto you

However, FMLA regulation 825.216(a) shifts the burden of proof onto you, the employer. In other words, you, as the employer, must prove that the eliminated job was eliminated not because of the FMLA leave, but for some other reason. And, you must have that documentation ready because court will infer the counter until you provide otherwise.

How can I avoid litigation?

If you lay off employees on FMLA, you may face Egg Harbor Township, New Jersey, business litigation as a result. However, one way you can avoid it is through open, honest communication and through a generous severance package.

The open and honest communication will let your valued employee know that they are valued and explain why they are being let go. Then, the severance package will give them the tools to find their next opportunity, time to find it and a monetary and insurance bridge to get there. Plus, built into that severance package will be a plethora of liability and lawsuit waivers that will eliminate their ability to file lawsuits against the company once they sign the severance agreement.

It is a win-win for both the departing Egg Harbor Township, New Jersey, employee and the company. However, it usually requires an attorney to draft to make sure it is enforceable and accomplishes what you need it to accomplish.