Matrix zoom! No longer flying under the Radar

by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

September 07, 2015



Welcome to – your new source for reliable, pertinent, and timely information about managing employee leaves of absence and accommodations.

In this inaugural blog post, I want to share what you can expect from Matrix-Radar in the coming weeks.  Topics will include FMLA and state leave laws, ADA and state equivalents, guidance on accommodations (including pregnancy issues), workers’ compensation, and other timely subjects.  We will keep you up to date on:

  • New or amended leave of absence or accommodation laws and regulations
  • Summaries of significant cases
  • Developments from the U.S. Department of Labor and the Equal Employment Opportunity Commission
  • Employer pointers and best practices
  • Answers to tough absence and accommodation questions
  • And more . . .

Let us know what YOU want to hear about.  For starters, let’s talk about investigating FMLA abuse.

Investigations of suspected FMLA abuse — YES YOU CAN!

As an employer, you have a right to prevent employees from abusing FMLA leave, including the right to investigate suspicious leave usage. Most employers are hesitant to investigate because they fear an FMLA claim.   Although there are limits, employers have more latitude to investigate possible FMLA misuse than many realize.  “[T]he FMLA does not require an employer to ignore human nature and assume that each of its employees always tells the truth.”  Nelson v. Oshkosh Truck Corp. (E.D.Wis. 2008).

The FMLA regulations support an employer’s right to deny FMLA protections to an employee who is misusing FMLA leave:

“An employee who fraudulently obtains FMLA leave from an employer is not protected by FMLA’s job restoration or maintenance of health benefits provisions.”  29  C.F.R. § 825.216(d)

When an appropriate investigation yields reasonable evidence that an employee has misused FMLA leave rights, the employer may benefit from the “honest disbelief” defense for any disciplinary action taken.  If an employer suspects that an employee is abusing FMLA leave, the employer can – and perhaps should – investigate.

Recent court decisions.  Court decisions help highlight what employers get right when investigating FMLA abuse claims and what they occasionally get wrong.

Wilson v. Republic Airways Holdings, Inc.  (S.D.Ind. 2015)

Later-discovered evidence does not undercut an employer’s honest suspicion of FMLA abuse at the time the termination decision was made.

Wilson had an FMLA intermittent certification for cellulitis which caused periodic foot pain.  Wilson took FMLA on September 24-27 but then Republic learned that Wilson had started a second job at KFC on September 26.  Republic’s investigation yielded statements from two individuals that Wilson had been given a job at KFC, a statement by Wilson that she may have worked for KFC on September 26, and revealed that Wilson had attended paid training at KFC on September 26.  Republic terminated Wilson based on its honest suspicion that Wilson was abusing her FMLA leave.

Republic’s decision was upheld by the court even though evidence later showed that Wilson had not worked on September 26.  This evidence was not produced until well after Republic’s termination decision and so did not undermine Republic’s defense that it had an honest suspicion of Wilson’s FMLA abuse at the time the decision was made.

Tillman v. Ohio Bell Telephone Co. (6th Cir. Oct. 2013)

Employer’s honest belief that employee had misused FMLA time supported by video surveillance.

Ohio Bell hired surveillance on two FMLA days and captured video showing Tillman working in his garage and running many errands in his car on those days. A medical expert gave opinion that the video indicated Tillman was performing these activities without pain. The company’s policy included discipline up to and including termination for improper time reporting. The court found ample grounds for Ohio Bell’s honest disbelief in Tillman’s FMLA usage.

Williams-Grant v. Wisconsin Bell, Inc. (E.D.Wis. Sept. 2013)

Video surveillance plus employee’s lies during investigation supported employer’s termination for suspected FMLA abuse.

Wisconsin Bell hired surveillance on two FMLA days, capturing evidence that Williams-Grant went to church on the first day and to a vacation spot on the second. Williams-Grant failed to cooperate with the investigation by lying about her activities on FMLA days, in violation of company policy. The court granted a summary judgment for Wisconsin Bell on FMLA retaliation claims based on its honest belief that Williams-Grant had misused her FMLA leave.

Ion v. Chevron USA, Inc. (5th Cir. Sept. 2013)

Don’t do it this way!  More investigation needed to support employer’s reliance on a co-worker’s statement.

Employer terminated an employee for attendance issues and insubordination after the employee requested FMLA leave. The employer relied in large part on a report by a co-worker that the employee said she was going to fake a nervous breakdown to get FMLA time. However, the employer simply took the co-worker’s statement as true without further investigation or gathering sufficient evidence to support the co-worker’s statement. The employer failed to establish honest disbelief in the employee’s FMLA claim.

Do’s and Don’ts.  Here are some tips related to investigating FMLA claims.

  • Do have clear procedures in place for monitoring and authenticating FMLA claims.
  • Do create policies that clearly articulate the potential grounds for termination if an employee misuses FMLA leave.
  • Do conduct a reasonable investigation to develop and document your honest belief that an employee is abusing FMLA.
  • Do use only publicly available information and observation of activities to avoid a claim of invasion of privacy.
  • Don’t start an investigation without some existing indication or evidence of FMLA abuse.
  • Don’t rely on hear-say, rumors or undocumented sources of information for making decisions.
  • Don’t use FMLA usage to terminate employees for performance reasons or other reasons unrelated to FMLA.’

Matrix Absence Management assists its clients in investigating suspected FMLA abuse with select follow-up procedures and support in engaging surveillance when appropriate. Call  1-800-866-2301 if you would like to inquire about Matrix’s leave management and accommodation services.