Eliminating a position

In an effort to reduce costs and to maintain profitability, our department has been asked to eliminate a position. The most reasonable choice is a position currenlty held by en employee who is out on FMLA leave. The position is a logical one since it is highly paid and the person in the job has skills/responsibilities that can easily be broken apart and disseminated to other (lower paid) employees in the department. If the employee had not been on FMLA, she most definitely would have been terminated as part of this position elimination program.

 So, my question is this -- we are aware of her protected status, but are making the position elimination decision based on purely financial and operational grounds. So, what type of documentation should be made for this type of decision? what paperwork kept? what NOT to do? Thanks in advance.


  • 5 Comments sorted by Votes Date Added
  • There is a DOL reg that states that it is the burden of the employer to show that an employee would have been laid off during FMLA leave even if the employee didn't take leave. So, I think you're on the right track with keeping accurate and complete records relating to the position being eliminated. For instance, any financial analysis you've done or meetings you've held regarding the need to reduce costs would be helpful. Just keep anything generated that would help show that your decision had nothing to do with the fact that the employee went on FMLA leave.

    Hope this helps!

  • Are other departments having to eliminate positions? If so, what criteria are they using? Have other departments or yours had to "layoff" employees in the past? What criteria was used then?  If not or if you are using different criteria, you will have a harder case to prove.  To prove that you aren't just throwing up a smokescreen to do an end-run around FMLA protections.

     You stated that this was a highly paid employee. While using the financial argument, could you go further and show that you would have to lay off two other people instead of him/her to get the same financial results? 

    Once you have all the documentation, I would still pass it by an employment attorney in your area.  Check with them about a waiver/release of claims. It might be worth the $s now to pay severance then to embroil the company in a further lawsuit.


  • Nice point! Position elimination is always tricky , but FMLA is even tricker. I would like to know if any meetings about eliminating this position took place before the employee went on leave? I have seen may cases lost, because someone forgot to write down minutes. Good luck.
  • If there are any issues that could lead to a pretext claim, it would be good to know those now.

    Has the employee to be separated made any complaints or expressed any concerns about sexual harassment or other forms of illegal discrimination?  If there are any skeletons in the closet, then the employee could argue that the financial and operational stuff (while reasonable on its face) is really just pretext for the actual underlying cause of either discrimination or retaliation.

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