8-13-12; Attacking FMLA abuse—Joseph F. D’Amato, J.D. analyzes an important federal ruling summarily dismissing a questionable FMLA beef

In this significant decision the Federal Appeals Court held an employer can refuse to reinstate an employee returning from FMLA leave if it has an “honest suspicion” the employee misused his federally required unpaid leave time. We feel the ruling provides a game plan to safely terminate employees who misuse their federal rights.

Under the Family Medical Leave Act (FMLA), an eligible employee is entitled to as many as twelve weeks of leave per year for a variety of reasons, including “to care for the spouse, or a son, daughter, or parent of the employee, if such spouse, son, daughter or parent has a serious health condition.” 29 U.S.C. §2612(a)(1)(C).

We understand the majority of folks taking FMLA leave due so for the precise reasons outlined in the statute. However, what remedies does an employer have if it has suspicions an employee might be abusing his or her FMLA leave? The United States Court of Appeals, Seventh Circuit faced this situation in the case of Scruggs v. Carrier Corporation, 2012 WL 3140113 (C.A.7 Ind.).

Plaintiff Scruggs, a brazier for Defendant Carrier Corporation (Carrier), took intermittent FMLA leave from 2004 through 2007 in order to help care for his mother who had been moved to a nursing home. In 2006, Carrier implemented a program to combat employee absenteeism and suspected FMLA abuse. Part of the program included placing employees suspected of abuse under surveillance in order to determine if they were abusing FMLA leave. Plaintiff was a Carrier employee suspected of FMLA abuse.

Carrier placed Plaintiff under surveillance four times between 2006 and 2007. On the fourth occasion, July 24, 2007, video surveillance demonstrated Plaintiff did not leave his home the entire day, save for one trip to the mailbox. Plaintiff previously completed FMLA paperwork advising Carrier he would be taking the entire day off on July 24th to shuttle his mother between her nursing home and doctor appointments. Surveillance documented claimant didn’t shuttle anyone anywhere on that day—he was at home all day.

Carrier later confronted Plaintiff about its concerns he was abusing FMLA leave. When given an opportunity to explain his absence, Plaintiff advised Carrier he could not recall the events of July 24, 2007, but was certain he was helping his mother and was not abusing his FMLA leave. He subsequently produced documentation from his mother's nursing home and doctor's office, which only raised further questions for Carrier, as the documents produced were facially inconsistent and conflicted with Carrier's internal paperwork. Plaintiff was eventually terminated and he filed suit against Carrier for interference and retaliation under FMLA.

To prevail on a claim for FMLA interference, an employee must prove that: (1) he was eligible for FMLA protections; (2) his employer was covered by the FMLA; (3) he was entitled to leave under the FMLA; (4) he provided sufficient notice of his intent to take FMLA leave; and (5) his employer denied him FMLA benefits to which he was entitled. Family and Medical Leave Act of 1993, § 105(a)(1), 29 U.S.C.A. § 2615(a)(1). To defeat a claim for FMLA interference in the territories covered by the Seventh Circuit, an employer need only show it refused to reinstate the employee based on an “honest suspicion” that he was abusing his leave.

Carrier filed a Motion for Summary Judgment, which was granted by the District Court and upheld by our Seventh Circuit Court of Appeals. Both courts held the inconsistencies between Plaintiff’s story and the events captured during video surveillance were enough to raise an “honest suspicion” Plaintiff was abusing FMLA leave. Thus, Carrier was not liable for interfering with Plaintiff’s statutory FMLA rights.

If you have concerns about absenteeism or abuse of FMLA leave by your employees, our vote is to institute a companywide program similar to the one put in place by Defendant Carrier. KCB&A is happy to assist in putting this process into place for and with you. We feel the best evidence of fraudulent behavior is video documentation of fraudulent behavior. It is also the best defense in the event interference or retaliation claims are brought against you.

This article was researched and written by Joseph D’Amato, J.D. He can be reached at jdamato@keefe-law.com.