11/12/2015

1

GROUNDING YOURFREQUENT FLYERS

PREVENTING FMLA ABUSE

Joe Murray

jmurray@constangy.com

(404) 525-8622

November 10, 2015

HOW BIG OF APROBLEM?

2013 DOL survey:

• 3% of covered worksites reportedabuse

2007 SHRM survey:

• 39% of HR professionals grantedleave they believed to beillegitimate

11/12/2015

2

WHAT DO YOU THINK?

In the last three years, doyou believe that at leastone employee in yourorganization has abusedhis or her FMLA leaverights?

OVERVIEW

• Time off

• 12 weeks of leave in 12 monthperiod for most FMLA events

• 26 weeks of leave in 12 monthperiod for military caregiverleave

• 26 weeks is combined totalleave

11/12/2015

3

OVERVIEW

• Eligibility

• Work 12 months for company

• Work 1,250 hours in last 12months

• Employer must have 50employees within 75 miles

OVERVIEW• Qualifying reasons

• Birth/care of child

• Placement/care of foster or adoptedchild

• Self, spouse, son/daughter, or parentwith serious health condition

• Military qualifying exigency

• Military caregiver

11/12/2015

4

OVERVIEW

• Types of leave

• Block

• Intermittent

• Reduced schedule

OVERVIEW

• Employer liability

• Interference (no intent)

• Retaliation (intent required)

Which kind is easier to defend?

11/12/2015

5

WHAT DO YOU THINK?

1. Terminate NOW

2. Wait and See

3. Depends onCircumstances

Better to terminate an employee whois out on leave or wait until thereturn?

“HONEST BELIEF”

• Judicially created defense

• Employer does not need toestablish employee actuallyabused FMLA leave entitlement

• Employer need onlydemonstrate honest beliefthat abuse was occurring

11/12/2015

6

“HONEST BELIEF”

• Some courts also require employer toshow it “reasonably relied” uponparticular facts suggesting abuse

• Other courts require showing thatbelief of abuse was

“reasonable and honest”

“HONEST BELIEF”

• Employee may still prove that allegedabuse was just a pretext for retaliation

11/12/2015

7

COMMON TYPESOF ABUSE

• Moonlighting/second job

• Personal matters

• Failing to take care of familymembers

• Extended vacations

• Recreational activities(partying etc.)

WHAT DO YOU THINK?

1. Yes

2. No

3. Depends

Can employees work a second jobwhile on FMLA leave?

11/12/2015

8

MOONLIGHTING

Pharakhone v. Nissan N.A. (6th Cir.)

• Employer had documented policy againstsecond job without approval while on leave

• Took leave to care for wife and child afterbirth

• Informed employer he was going torun the family restaurant

MOONLIGHTING

Pharakhone (cont.)

• Ignored employer’s warning about notperforming second job

• Employee terminated for FMLA abuse

11/12/2015

9

WHAT DO YOU THINK?

1. Yes

2. No

Was Pharakhone’s terminationupheld by the court?

MOONLIGHTING

Pharakhone (cont.)

• FMLA permits employers to adopt“uniformly-applied policy governing outsideor supplemental employment”

• Court found no evidence company hadulterior motive for termination

11/12/2015

10

MOONLIGHTING

Agee v. Northwest Airlines, Inc. (E.D. Mich.)

• Employer apparently did not havepolicy against moonlighting

• Employee went out on FMLA leave forcondition that allegedly rendered himincapable of working

MOONLIGHTING

Agee (cont.)

• Employee then began working on aranch caring for 50 horses

• Terminated for lying about reason forleave

11/12/2015

11

WHAT DO YOU THINK?

1. Yes

2. No

Was Agee’s termination upheldby the court?

MOONLIGHTING

Agee (cont.)

• Court determined termination wasbased on employee’s lie, not his use ofFMLA

11/12/2015

12

PERSONAL ERRANDS

Kitts v. General North Telephone, Inc.(S.D. Oh.)

• Employee was authorized to takeintermittent leave for panic disorder

• Need for leave could be up to once aweek

PERSONAL ERRANDS

Kitts (cont.)

• Employer denied PTO to attend parent-teacher conference

• On day of conference, Kitts took FMLAleave, then later decided she feltbetter and attended conference

11/12/2015

13

PERSONAL ERRANDS

Kitts (cont.)

• Supervisor became suspicious, but Kittsdenied going to conference

• Employer hired P.I. and Kitts admittedto lying

• Employer terminated Kitts formisrepresenting health status forabsence

WHAT DO YOU THINK?

1. Yes

2. No

Was Kitts’ termination upheld by thecourt?

11/12/2015

14

PERSONAL ERRANDS

Kitts (cont.)

• FMLA does not prohibit investigatingalleged dishonesty or terminatingfor misconduct

PERSONAL ERRANDSMosley v. Hedges (N.D. Ill.)

• Employer suspected FMLA abuse andhired P.I.

• P.I. observed Mosley walking, driving,running errands, and shopping

• Mosley terminated for engaging inactivities contrary to medicallimitations

11/12/2015

15

WHAT DO YOU THINK?

1. Yes

2. No

Was Mosley’s termination upheld bythe court?

PERSONAL ERRANDSMosley (cont.)

• Company honestly believed employeewas misusing FMLA

BUT BEWARE

11/12/2015

16

PERSONAL ERRANDSNelson v. Oshkosh Truck Corp.(E.D. Wis.)

• “FMLA contains no requirement that anindividual on intermittent leave mustimmediately return home, shut theblinds, and emerge only whenprepared to work.”

CARING FOR FAMILY MEMBERS

• How much time do youhave to spend caring forfamily member?

11/12/2015

17

CARING FOR FAMILY MEMBERS

Scruggs v. Carrier Corp. (7th Cir.)

• Employee had FMLA to take mother todoctor’s appointment every six months

• P.I.’s video surveillance showedScruggs not leaving own house onday he had taken leave to takemother to doctor

• Employer terminated Scruggs

WHAT DO YOU THINK?

1. Yes

2. No

Was Scruggs’ termination upheldby the court?

11/12/2015

18

CARING FOR FAMILY MEMBERS

Stonum v. U.S. Airways, Inc. (S.D. Oh.)

• Obtained FMLA leave to care for mother

• Co-worker informed supervisor thatStonum was using leave to do other things

• P.I. hired and observed Stonum’s activities

• On one occasion, Stonum took a fullday absence and spent 12 minuteswith mother

CARING FOR FAMILY MEMBERS

Stonum (cont.)

• On another day, he didn’t visit at all

• Stonum denied abuse and employerterminated her for repeatedly misusingher FMLA leave

11/12/2015

19

WHAT DO YOU THINK?

1. Yes

2. No

Was Stonum’s termination upheldby the court?

TAKING OR EXTENDING VACATION

Hughes v. City of Bethlehem (3rd Cir.)

• “Whatever happens in Las Vegas doesnot necessarily stay in Las Vegas!”

• Employee is diabetic

• Went to Las Vegas for vacation andpermanent lip/eyebrow tattoos forcosmetic reasons

11/12/2015

20

TAKING OR EXTENDING VACATION

Hughes (cont.)

• Timing conflicted with two days shewas supposed to work, so she called insick

• “Anonymous” note claimed Hugheswas improperly using sick leave

TAKING OR EXTENDING VACATION

Hughes (cont.)

• Hughes denied going to Los Vegas

• Employer ultimately determinedHughes had been in Los Vegas, andterminated her employment

11/12/2015

21

WHAT DO YOU THINK?

1. Yes

2. No

Was Hughes’ termination upheldby the court?

TAKING OR EXTENDING VACATION

Hughes (cont.)

• No interference – calling in “sick” didnot provide notice FMLA leave wasneeded

• Legitimate reason for termination –improper use of sick leave andattempt to cover up herwhereabouts

11/12/2015

22

HAVING “FUN” DURING LEAVE

Jaszczyszyn v. Advantage HealthPhysicians Network (6th Cir.)

• Employee on intermittent leave for backpain that could flare up “about fourtimes a month”

• “Friend” posted pictures on Facebookof employee attending Polishheritage “festival”

HAVING “FUN” DURING LEAVE

Jaszczyszyn (cont.)

• Other employees were upset at havingto cover for employee while she was outhaving fun and reported her

• Employer investigated and terminatedemployee for FMLA abuse

• Employee sued for interference

11/12/2015

23

WHAT DO YOU THINK?

1. Yes

2. No

Was Jaszczyszyn’s termination upheld bythe court?

HAVING “FUN” DURING LEAVE

Jaszczyszyn (cont.)

• Interference claim failed because shereceived all leave to which she wasentitled

• Retaliation claim failed – dishonesty waslegitimate, non-retaliatory reason fortermination

11/12/2015

24

ACTIVITY OUTSIDERESTRICTIONS

Dalpiaz v. Carbon County (10th Cir.)

• Employee was benefits administratorwho handled FMLA for county

• Leave due to a back condition

• Co-workers reported physical activitythat exceeded restrictions

ACTIVITY OUTSIDERESTRICTIONS

Dalpiaz (cont.)

• Employee lied about activity and didnot cooperate with requestedfollow-up

• County terminated employment

11/12/2015

25

WHAT DO YOU THINK?

1. Yes

2. No

Was Dalpaiz’s termination upheld bythe court?

“HONEST BELIEF”

• Reviewed 35 court cases

• In each, employee terminated(or suspended in one case)for suspected FMLA abuse

• In each, employee suedemployer for interference,retaliation, or both

11/12/2015

26

WHAT DO YOU THINK?

1. 0 – 33%

2. 34 – 67%

3. 68 – 100%

What was the employer’s “winpercentage” for those cases?

HONEST BELIEF

Lessons learned

• Surveillance can be valuable

11/12/2015

27

HONEST BELIEF

Lessons learned

• Listen to suspected abuser

• Can’t defend actionsabsent a reasonableinvestigation

HONEST BELIEF

Lessons learned

• Implement FMLA abuse policies

• No moonlighting or work while onleave

• Courts have also upheld travelrestrictions while on leave

11/12/2015

28

INTERMITTENT LEAVE ABUSE

Employee exceeds estimated leaveamount?

• How much is excessive?

• Use common sense and give benefitof the doubt when reasonable

• Medical certification only asks foran “estimate”

INTERMITTENT LEAVE ABUSE

Addressing “excessive” intermittentleave?

• Recertification because:

• Estimate significantly exceeded

• Circumstances have otherwisechanged

• Other information casts doubtson certification’s validity

11/12/2015

29

WHAT DO YOU THINK?

Have you terminated an employee forsuspected abuse or fraud?

DISRUPTIVE LEAVE

Seek leave schedule thataccommodates employer’s preference

• Requires reasonable effort by employee

• Employer may actually facilitatescheduling of doctor’s appointments

• Don’t discuss the actual condition

11/12/2015

30

DISRUPTIVE LEAVE

Require employee to use PTO when allowed

• Employer policy controls

• Can only require when paid leave couldbe taken for this type of leave

• E.g., cannot require use of paid sickleave when caring for family memberunless sick leave can be so usedabsent FMLA leave

TRANSFERRING AN EMPLOYEE

• Employer’s choice when leave isforeseeable for planned treatment

• Must be agreed upon for pregnancy,birth or adoption/placement

11/12/2015

31

TRANSFERRING AN EMPLOYEE

• Limitations:

• Must better accommodate periods ofleave than regular position

• Same pay/benefits (even if transferredto position that is normally lower pay)

• Cannot require employee to takemore leave than medicallynecessary

TRANSFERRING AN EMPLOYEE

• Limitations (cont.):

• Cannot discourage intermittent leave(i.e., day shift to night shift transfer)

• Return to prior position whenintermittent leave no longer needed

11/12/2015

32

ADDITIONAL CONTROLS• Establish employees’ expectations of

notice of leave when foreseeable

• Maximize use of medical certificationavailability

• Use the “rolling” 12-month period

• Limit leave increments to shortestperiod of time used by payroll,but must be 1 hour or less

Questions?