Walmart fires an employee after the employee took emergency time off to resolve a medical
complication with his son.
Because of that, they are now facing a lawsuit that accuses them of a pattern and practice
of terminating employees for taking necessary time off to attend to family emergencies.
Joining me now to talk about this is Farron Cousins, executive editor of The Trial Lawyer
magazine.
Farron, what's the story behind this lawsuit?
It sounds like it could be a problem if it continues to grow.
Absolutely.
Basically, we had this Walmart cashier, a man named Anthony Kelly in Tallahassee.
Had to call in sick to Walmart because his son was throwing up blood.
It wasn't a runny nose.
The son had a very serious illness.
Takes him to the hospital.
Anthony, as far as we've seen followed the procedure on how to call in sick and report
that you were not coming in to work that day.
He gets back to work.
He goes two weeks.
They don't say anything.
Then finally, one day, he can't clock in, asked the higher ups what's happening and
they said, ‘Well, it's because of that absence you had.’
It gets even worse because it was a legitimate medical excuse.
He said, ‘I'll provide you a doctors note if that will excuse it.’
Manager says, ‘Absolutely, do that.’
Comes back the next day with a doctors note.
Manager still says, ‘Sorry.
Can't help you.
You're still fired.’
Okay.
Well, let me break this down.
First of all, most states have a fire at will status.
That means unless you have a contract, the company can fire at will.
In this case, I think what this lawyer is going to find is if you look behind it, when
the employee is hired, they're told there are certain procedures we have in place as
you point out for emergency situations.
Here it is.
You do A, B, and C. If you do A, B, and C, you're in compliance with what the company
is doing and then in this situation, we don't know, but it sounds like he's in compliance.
The interesting thing is it happens two weeks later after he brings in a doctors note that
says, ‘Yeah, this child might have died but for this.’
I'm interested in the notion of a pattern in practice.
We've seen this with Walmart before.
There's so many Walmarts.
There's so much commerce that takes place with Walmart that you start seeing patterns
in practice.
We had the case where they weren't clocking ... If an employee had the right to clock
out, Walmart says, ‘No, you may not clock out even if you're on a break.
They had the employee actually working during the break, not being paid for it.
That was a pattern in practice.
We're going to find this here?
I believe so.
In fact, at the particular Walmart where Anthony worked, there's already an instance of one
employee being fired for something similar having to take time off for a family emergency.
Then later on, after they had already fired that employee, they came back and reinstated
him.
It is something we've seen, stories that we have heard about from Walmarts all over this
country.
They're not necessarily really adhering to FMLA laws, the Family Medical Leave Act.
A lot of states are letting it go.
They're not doing anything on the federal side or the state side to help enforce these
laws.
That's why lawsuits like this, like Mr. Kelly has filed is about all they have left to really
get these laws that are in place actually used.
What will happen on this is if there's any ground gained in this, then other people are
going to hear the story.
Then all of a sudden, you start seeing this pattern in practice like we saw where Walmart
had employees working during their punch out time and weren't being paid to work, but they
were having to work anyway.
That was a pattern.
It emerged the same way.
It emerged with just a few employees coming forward and then the pattern in practice starts
developing and you start seeing it happen all over the country.
I think that's what you're trying to suggest here.
Absolutely.
I think once this case really starts getting attention, the media starts paying attention,
we're going to see a lot more people come forward and say, ‘Wait a minute, what about
me and my family and I lost my job because I had to care for my children.’
My take is Walmart better get in front of this one.