During employee's FMLA leave, we found using a contractor worked better--can we fire?

Q. Our delivery driver went out on FMLA leave, so we jobbed out deliveries to a contractor. We discovered that using the contractor saves us a lot of money (payroll, van costs, etc.). What do we do when our driver returns from FMLA? There is no other job he can do.--Ben, Virginia

A. When employees return after FMLA leave, they are typically entitled to be reinstated to their jobs (or an equivalent one). But the employee is entitled to return only if his position exists. The Department of Labor acknowledges this limitation, noting that if an employee is laid off while on FMLA leave, you must be able to show that the employee would not have been employed at the time of reinstatement.

So, if your company had decided to outsource the delivery job before the employee took FMLA leave, it would be clear that there was no liability. However, in this case, you didn't discover that the outsourcing was more financially attractive until after he took leave.

You can continue outsourcing the work, but be prepared to demonstrate that the decision not to reinstate wasn't taken in retaliation against him because he took leave. At a minimum, be able to prove what you say about the cost of outsourcing the work, as well as the fact that there is no reasonably equivalent work possible. Best bet: Consult an attorney for perspective...

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