FMLA Leave and RIF Decisions: Why the Record Matters

A reduction in force may be driven by legitimate business needs, but an unclear selection process or inconsistent internal communications can turn a defensible decision into a jury question. A recent decision from the Northern District of Georgia offers a practical reminder for employers: When an employee using protected leave is selected for a RIF, objective criteria and a consistent contemporaneous record are critical.

In Donald v. Toppan USA, Inc., the plaintiff had used intermittent FMLA leave for several years to care for his wife. The company implemented a RIF in response to a significant production slowdown. After his use of leave increased, the company included the plaintiff in the RIF and notified him of his termination on a day he was using FMLA leave. The plaintiff was one of 15 employees selected, and the company conducted additional layoffs the following year. The company maintained that his selection was based on his relative seniority among production supervisors.

The contemporaneous record, however, raised questions about that explanation. Draft post-RIF organizational charts did not consistently reflect whether the plaintiff would remain employed, and internal communications suggested that his supervisor did not want to retain him despite acknowledging that he was performing satisfactorily. Other employees in comparable production roles also remained employed.

Although the court disposed of the plaintiff’s discrimination claims, it allowed his FMLA interference and retaliation claims to proceed. The timing of the termination, the supervisor’s knowledge of the leave, the internal communications, and evidence suggesting that other positions may have remained available created factual disputes about whether the plaintiff’s FMLA leave affected his selection. The court also concluded that the company’s history of approving his leave did not foreclose the possibility that the leave was later considered during the RIF process.

Donald is a helpful reminder that employers planning a RIF should:

• Define the selection criteria before making individual decisions and retain documentation showing how the criteria were applied.
• Review draft organizational charts, emails, and other contemporaneous communications for consistency with the stated rationale.
• Examine whether similarly situated employees or comparable positions are being treated differently and document legitimate reasons for any distinctions.
• Conduct an additional legal and HR review when a selected employee recently used protected leave or engaged in other protected activity.

Donald does not suggest that employees using FMLA leave are insulated from an otherwise lawful RIF. It does underscore, however, that the stated business reason must match the record. The same takeaway that should guide the process at the outset should guide the final review: Use objective criteria, apply them consistently, and ensure the contemporaneous record supports the decision.

Employers considering a reduction in force—particularly one involving employees who recently used protected leave or engaged in other protected activity—should consult employment counsel to review the proposed selection criteria, supporting documentation, and potential risk areas before decisions are finalized.