My company is a consulting firm that will be going to undergo a layoff due to the current economic conditions.  On the termination date, one of the people slated for termination will be on a previously-scheduled personal leave and will not be returning until a week after the others are terminated.  Is it legal to consider their termination date the same as the others that are affected, or must their termination date be the date on which they are officially notified of the termination.  The situation is somewhat muddied in that we do not require employees to accrue personal leave before taking it, and they will be substantially over the amount they would have accrued as of the termination date.

Thanks for your feedback.

Probably fine but there are some possible hangups.  Please provide the following information: 

1) How many employees does your company have within a 50 mile radius of the site of the employee who had a scheduled leave?  If the employee works remotely, how many employees does your company have within a 50  mile radius of the site from where the employee takes direction?

2) What state are you in?

3) What is the exact wording of your PTO/Vacation/Personal Leave policy/policies that may apply here?

4) Is the purpose of the leave known?  If so, what is it?

TXHRGuy:

Probably fine but there are some possible hangups.  Please provide the following information: 

1) How many employees does your company have within a 50 mile radius of the site of the employee who had a scheduled leave?  If the employee works remotely, how many employees does your company have within a 50  mile radius of the site from where the employee takes direction?

2) What state are you in?

3) What is the exact wording of your PTO/Vacation/Personal Leave policy/policies that may apply here?

4) Is the purpose of the leave known?  If so, what is it?

1)  65.  The employee does not work remotely.

2)  Georgia

3)  To summarize, a person at their level can accrue up 15 days of Personal Leave per year, and can take all of the PL for which they will accrue within a give year at the beginning of the year.  Otherwise said, they do not need to accrue the PL before taking it.  There is also language that says that any PL taken in excess of that which is accrued on their termination date is deducted from any pay due to them or severance pay offered.

4)  To visit family in a foreign country.  The person is a naturalized citizen.

What we were going to do is send a certified letter today notifying them of the termination.

Thanks for your help.

It does not sound like this falls under FMLA. Even if it did, as long as you can prove they are part of an overall layoff and you are not singling them out due to having taken FMLA, you should be okay.

I would make their term date the same as everyone elses unless there is anything in the leave paperwork that guarantees them a job through the return date...anything that makes it more of a contract. You might have an attorney look over the leave paperwork to be sure that it does not.

As to the vacation negative balance, what have you done in the past where employees have terminated and been in the negative? We allow our employees to use time at the beginning of the year but do not ask that it be repaid at termination.  We have yet to have anyone (since we setup the policy) take advantage.  Plus obviously this employee wasn't taking advantage. He/she had no way of knowing that there would be a layoff.  And unless he/she is still getting paid and/or due a final paycheck, it will be hard to recover.  This is one of the negatives of a policy that allows use before earning.  Are you paying severance? Will there be enough to deduct?

As long as your layoffs don't all happen to be foreign born individuals, I think you are OK.  Your policy allowing people to take their PL into the negative doesn't mean you have to let people take PL.