As some of you may know, my mother was a music teacher on Long Island in the public school system and active in her union. In my senior year, our teachers were on strike and she refused to let me cross the picket line, even though she worked in a different district. As a result, I went away to visit a friend in college and ending up graduating early. My first job out of law school was at the National Labor Relations Board , the Federal Agency that regulates union management relations.
I was stationed in Fort Worth Texas, which is a right to work state. Union organization was very contentious. I remember this one case, about an employee who was a drunk and poor performer. Everyone knew he was a drunk as he would frequently call out or show up intoxicated. The employee was never discipline for the behavior which went on for years. Then, after he became involved in a union organizing campaign, he was fired for being a drunk. Unfair labor practice charges were filed and the employer was found to have violated the National Labor Relations Act. The court reasoned that the discharge was motivated by anti-union animus noting the close proximity in time to the union organizing drive. There have been several more cases of this nature over the years.
The timing connection has now been applied to numerous other causes of action where an employer must assert a good faith non discriminatory reason for terminating an employee in litigation. There are thousands of cases of employees alleging they were wrongfully discharged for discriminatory reasons, whistle blowing (CEPA) or retaliation for taking Family Leave. In fact, I never met an employee who told me they deserved to be fired. Employers are well advised not to terminate employees while on Family Leave or shortly after their return from leave.
I recently had a consultation where an employer wanted to get rid of an employee who was a poor performer with a rotten attitude. The only problem was she had worked for him for years and now she was pregnant. I asked him why he had never disciplined her or fired her before. His response was he didn't have the time. My advice was that it was not the time now and he should wait to terminate. The moral of the story is, discipline when necessary, close in time to the offense and not close in time to any protected activity.