October 1, 2007
Employee Can Be Fired For Working At A Second Job While On FMLA Leave
Howard v. Millard Refrigerated Services, Inc., ___F.Supp. 2d. ___, 2007 WL 608345 (D. Kan. 2007)(registration required), is an important FMLA case which may stand for the proposition that an employee may not work a second job while on FMLA leave.
In this case, while an employee was on FMLA leave another employee informed the employer that the employee was working at another employer. The employer conducted an investigation and after it confirmed that the employee was indeed working the employer discharged the employee.
The employer did not have any policy with respect to work while on FMLA leave, but did have a policy which stated that employees cannot work while on a leave of absence. The court held that this was a legitimate nondiscriminatory reason for the termination decision.
In a sense this was an easy case as the employee violated the employer's LOA policy. A more difficult case would have been if the employer had no policy with respect to working while on a LOA. My view is that the result would have been the same because implicit in the FMLA is that you need the time because you cannot work. However, the answer may be different if the employee works at night and was taking FMLA to care for his new born daughter during the day.
Employers beware. This case demonstrates the importance of employers having written personnel policies.
Mitchell H. Rubinstein
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