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When an employee is suspected of Family and Medical Leave Act (FMLA) abuse, an employer can put the employee under surveillance, according to Julie Lucht, an attorney at Perkins Coie in Seattle. “Sometimes, it works,” she said.
Hire a private investigator to conduct the surveillance to unearth the abuse, though; don’t try to do it yourself, she added, speaking at the National Employment Law Institute’s 2015 Employment Law Conference in Arlington, Va., on Nov. 20. She recalled one company whose lawyer was spotted by the employee who was under surveillance as he drove by her house—not the best situation.
Employers need a reason for the suspicion before conducting surveillance, she added. Honest suspicion may arise from:
Or maybe, for example, a co-worker sees that the employee has posted on Facebook about a great new course he or she is taking in California with a lot of pictures from there, and the co-worker mentions this to HR. However, make sure the report is reliable information and not just a co-worker who has a grudge against the employee out on FMLA leave, Lucht cautioned.
She reviewed recent case law involving surveillance for FMLA leave abuse:
An employee brought a case against Carrier Corp., an air-conditioning and refrigeration company headquartered in Farmington, Conn., protesting his termination due to alleged FMLA abuse. Carrier had hired a private investigator to conduct surveillance of 35 employees suspected of abusing the company’s leave policies. The investigator observed that the plaintiff, who was authorized to have intermittent FMLA leave to care for his mother in a nursing home, did not leave his home to care for his mother on a day he had requested leave. He was suspended even though he submitted documents to Carrier showing he did pick his mother up that day. Carrier wasn’t convinced, finding the documents suspicious and inconsistent, and terminated him.
The district court and 7th U.S. Circuit Court of Appeals rejected the plaintiff’s FMLA interference and retaliation claims. The 7th Circuit noted that the employer had an honest suspicion that the employee was abusing FMLA leave, which was enough to preclude liability on the interference claim. And the plaintiff could not establish a causal connection between his taking FMLA leave and his termination, which occurred only after the company received evidence of his potential misconduct. Otherwise, the appeals court stated, “virtually any FMLA plaintiff fired for misusing his leave would be able to state a claim for retaliation.” (This case is Scruggs v. Carrier Corp., 688 F.3d 821 (7th Cir. 2012).)
In another case, the 1st Circuit held that no reasonable jury could conclude that a plaintiff was fired in retaliation for his exercise of FMLA rights when the employer had videotape evidence over two days of the plaintiff driving, spending 30 minutes at the gym, renting videos and shopping. The employer concluded this activity was inconsistent with his claim that he had migraines on those days.
The plaintiff asserted that the employer’s reason for termination was pretext for FMLA retaliation because it took the “extraordinary step” of placing him under surveillance. But the court ruled that surveillance did not show that the employer’s reasons for terminating plaintiff were pretextual. The employer had hired private investigators at least five times in the past and the plaintiff did not prove that similarly situated employees were treated differently. (This case is Campbell v. Verizon Virginia Inc., 2011 WL 4073143 (E.D. Va. 2011). Verizon is a telecommunications company based in New York City.)
In a third case, the plaintiff took FMLA leave for his back condition and depression. The employer hired a private investigator to conduct surveillance of the employee after he requested FMLA leave that coincided with the New Year’s holiday. The investigator observed the employee driving around, running errands, and visiting a sporting goods store, a department store and a coffee shop. He also was observed working in his garage, bending, lifting and transporting wood trim.
The employer had a physician review the surveillance video. She concluded that his activities were inconsistent with someone with severe back pain and that he was not incapacitated from performing his work on the days he had taken FMLA leave. The employer terminated the employee, who sued under the FMLA.
The 6th Circuit held that the employee had abused FMLA leave and violated the company’s code of business conduct. (This case is Tillman v. Ohio Bell Telephone Co., 545 Fed. Appx. 340 (6th Cir. 2013). Ohio Bell, headquartered in Cleveland, is a wholly owned subsidiary of AT&T.)
What Co-Workers Notice
Sometimes surveillance isn’t necessary, such as when employees supposedly needing FMLA leave post pictures to Facebook that suggest they are just fine, angering co-workers in the process.
But HR should still talk with the employee, Lucht noted. “Often HR will say why it has concerns and employees will admit things. You can take action” based on what an employee admits, she observed.
In Lineberry v. Richards, 20 WH Cases 2d 359 (E.D. Mich. 2013), the plaintiff was a registered nurse at Detroit Medical Center (where Jessica Richards was her supervisor) who woke up one day with “excruciating pain” in her back and leg. After she was approved for FMLA leave, she posted pictures of herself on Facebook riding a motorboat and drinking alcohol on a trip to Mexico, as well as pictures of herself holding her infant grandchildren while she stood. She also shared stories about trips to Home Depot, caring for her grandchildren and taking online classes.
Her co-workers complained to the employer about these posts, considering the activities shown and discussed to be a misuse of FMLA leave. The employer met with the plaintiff regarding the accusations of leave misuse. At the meeting, she initially claimed she had used a wheelchair in the airport to pass through lengthy customs, but then admitted she hadn’t used a wheelchair. And she said she could stand for up to 30 minutes, contradicting her doctor’s restriction of only 15 minutes of standing at a time.
The employer terminated her for dishonesty, and the court rejected the plaintiff’s FMLA interference and retaliation claims. The employer showed it would have fired the employee for dishonesty absent the employee’s exercise of her FMLA rights.
Avoid Snap Judgments
Employers should tread cautiously, though. Lucht noted that in Ballard v. Chicago Park Dist., 741 F.3d 838 (7th Cir. 2014), an employee requested leave to accompany her terminally ill mother on a trip to Las Vegas. The trip was for pleasure, not treatment, and the employee and her mother participated in typical tourist activities.
The employee acted as her mother’s primary caregiver at home and continued to assist her with basic medical, hygienic and nutritional needs while they were in Las Vegas.
The 7th Circuit upheld the district court’s denial of summary judgment for the employer and rejected the employer’s argument that any care during travel needed to be connected with ongoing treatment to be protected by the FMLA. The court noted that “care” under the FMLA does not require medical treatment and is not restricted to any particular place.
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.
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