FMLA Abuse: Serving Jail Time, Moonlighting, Vacationing and More

Even if the real reasons for FMLA leave seem outrageous, courts may rule against employers

Allen Smith, J.D. By Allen Smith, J.D. June 21, 2017

​People who abuse the Family and Medical Leave Act (FMLA) do so for a variety of off-the-wall reasons: to serve a jail sentence, attend a criminal court hearing, travel to exotic locations, go fishing or build a family business, for example.

But even if the fraudulent conduct is outrageous, whether an employer prevails in an FMLA leave abuse case often depends on whether it has conducted an exhaustive investigation, said Jeff Nowak, an attorney with Franczek Radelet PC in Chicago.

Some employers learn this lesson the hard way. Take the employee who had a bad back and could not stand or sit for long periods. While on FMLA leave, she posted videos of herself on Facebook drinking and dancing at a local bar. The employer fired her, noting that if she could dance, she could work.

A slam dunk for the employer?

No. The U.S. District Court for the District of Connecticut refused to dismiss her FMLA claims, finding that the employer should have conducted a closer review of her health condition and that it failed to consult with a medical provider to determine if this conduct was incompatible with FMLA leave. Rather than getting a second medical opinion that "would have provided the court with helpful evidence," the employer simply relied on its "lay opinion" that she could work if she could dance.

Nowak called this a "harsh decision for the employer" but noted that "these are the risks employers take in fighting FMLA abuse."

Due diligence doesn't guarantee employers will win every time they think there's been FMLA leave abuse, however, especially if the facts tug at heartstrings. Joan Casciari, an attorney with Seyfarth Shaw in Chicago, said she handled a case that involved an employee who was put on FMLA leave for depression. The employer later discovered through surveillance that she was doing Christmas shopping with her family and having a wonderful time. But her doctor confirmed that "retail therapy" was consistent with her condition and the fact that she could shop did not mean that she did not require FMLA leave.

And in a widely reported case, an employee took her mother, who was terminally ill, to Las Vegas on a Make-A-Wish-type trip. After the employee was fired, she sued under the FMLA. The court held that she was providing care for her mother, just in another place.

Increasingly Blatant FMLA Fraud

Sometimes, though, FMLA leave fraud is evident. For example, an employee once told one of Nowak's clients, "If you assign me to that machine, I am just going to take an FMLA day."

In one case defended by Brian McDermott, an attorney with Ogletree Deakins in Indianapolis, the employer discovered photos of an employee on the Internet holding a large fish he had caught on a day he claimed FMLA leave. The employee was fired for FMLA leave fraud, and the termination was upheld.

[SHRM members-only toolkit: Managing Family and Medical Leave]

In another case, an employee obtained a doctor's note requiring intermittent leave from work based on back problems, then flew to Hollywood, Calif., to be a paid extra on a reality show featuring her daughter. The employer fired her because it concluded that her conduct violated company policies and constituted FMLA leave fraud, he noted.

When FMLA leave abuse isn't so blatant, employers may need to do some digging. In one instance, an employee requested time off for vacation, which was denied. Then he asked for leave for the exact same period, claiming he needed time off for a sudden panic attack. The company granted the request. But when it realized the timing was the same, it investigated and then fired the employee for FMLA leave fraud, McDermott said.

Franklin Wolf, an attorney with Fisher Phillips in Chicago, recalled one employee who sought to extend his FMLA leave beyond the initial expected period. Using video surveillance, the employer discovered that the employee was doing construction work on the roof of his home. "This should not have been possible" given the employee's serious health condition, Wolf noted.

Casciari said an executive at a social services agency requested 12 weeks of FMLA leave for the birth of his child. When the CEO learned that the executive was test-driving a new position with another agency in the same city, the CEO fired the executive for several reasons, including working for the other agency during his leave. The worker sued, alleging FMLA retaliation and interference. At his deposition, he denied having any agreement with the new employer, said he hadn't worked for it and dodged questions about the true nature of the relationship. The employer then subpoenaed records from the rival agency and discovered a written contract that identified the executive as an "independent contractor" for the agency. The executive's lawyer withdrew from the case, and the executive claimed that he forgot about the contract because he was sleep-deprived. Summary judgment was granted to the employer, along with sanctions for the executive.

One Foot out the Door

"One of the biggest areas of abuse we commonly see are poor-performing employees requesting FMLA leave just before they are to be terminated," said Brittany Bogaerts, an attorney with Nixon Peabody in Chicago. "Typically, these employees know that the writing is on the wall—perhaps they've received multiple write-ups in the last few months or have been subject to disciplinary action."

An employer in this scenario should make sure to document when it decided to fire the worker and for what reasons, she said. This ensures that the employer can demonstrate that the termination decision was made before the employee's request for FMLA leave and that the firing was unrelated to the leave request.


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