In Warwas v. City of Plainfield, No. 11-1736, 2012 U.S. App. LEXIS 15324, (3rd Cir. July 25, 2012), an employee terminated while on FMLA leave sued for interference with her FMLA rights. The employer asserted it terminated the plaintiff because while on leave she continued to work at home on a part-time job with another employer, in violation of its policy on outside employment. The Third Circuit Court of Appeals affirmed summary judgment for the employer because it was clear that the plaintiff was not terminated for her use of FMLA leave, but rather, for her perceived misuse of her FMLA leave and her failure to return to work. The court observed that the FMLA does not prohibit the termination of an employee who abuses her leave, nor does it shield an employee from termination simply because the alleged misconduct which led to the termination occurred while the employee was on FMLA leave. The court confirmed that an employer may defeat an FMLA claim if the discharge was based on the employer’s honest belief that the plaintiff misused her leave or failed to use her leave for the intended purpose.


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