Busted! Employer catches employee on social media abusing FMLA leave

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FMLA leave costs your company enough when employees take it legitimately … then you catch an employee trying to scam you!

Unfortunately it happens a lot, though probably not as dramatically as it all unfolded for one of your peers in California.

An employee taking intermittent FLMA leave was caught red-handed on a fishing trip and it was posted on Facebook Live for all to see, including his co-workers and boss.

But when the employer fired him for the abuse, he sued!

Check out what happened in this case and how to safely handle any suspicions of FMLA abuse in your own organization.

His own co-worker ratted him out

Union Pacific Railroad had approved intermittent FMLA leave for an employee who’d been suffering from several different medical conditions.

After the fishing trip video surfaced (which had been taken by a co-worker), the company promptly terminated the employee for violating the company’s policy against dishonesty and misusing FMLA leave.

But this employee wouldn’t go quietly.Instead he sued his former employer for wrongful termination, initially claiming he couldn’t recall whether he’d been on that fishing trip.

The good news: The court dismissed the case on summary judgment.

The bad news: The employer still had to sink time and money into fighting the claim.

A $21B a year price tag

FMLA leave is no bargain to start with. According to the Employment Policy Foundation, FMLA compliance costs you and your peers $21 billion each year in:

  • lost productivity
  • continued health benefits, and
  • labor replacement.

Which is why you of course only want employees who legitimately qualify for leave to be granted it.

But you need to tread extra carefully here.

When cost-consciousness backfires

The employer in this case had the evidence put under its nose, in the form of the Facebook Live video.

But some of your peers have gotten into serious hot water trying to prove that someone was abusing their FMLA leave.

Last year a Massachusetts jury awarded an employee $2 million when the company’s HR department was “snarky” and “hostile” to that individual’s FMLA request and presumed he was faking it (DaPrato v. MA Water Resources Authority).

Because the employer went into the investigation with a “presumption of wrongdoing,” it hadn’t treated the employee fairly and violated his rights under the federal law.

That’s an important reminder not only for HR, but for all your company’s supervisors.

While you want employees to watch out for your bottom line, they should never start from a skeptical or suspicious place when it comes to FMLA leave.

Finding fraud without treading into tricky territory

There are many ways your company can safely and legally prevent FMLA abuse, especially when it comes to intermittent leave:

  1. “Dock” pay when necessary. If a staffer is using paid time off during their intermittent FMLA absences, double-check you’re making all appropriate deductions from their PTO bank. No PTO leave left? Here, employers can generally “dock” the workers pay even if they’re an exempt employee.
  2. Enforce “call-in” policies. Courts have ruled that it’s OK for employers to make workers on intermittent FMLA adhere to standard call-in procedures and give advance notice of absences whenever possible. The key here is be consistent when it comes to enforcing the policy.
  3. Explore transfer options. If the employee is taking leave “for purposes of planned medical treatment,” it’s OK to transfer that person to a different position that works better for the leave. (Note: This option isn’t permitted when the employee’s leave is for unpredictable absences.) Key: Although the duties can be different, the pay and benefits of the position must be the same. Plus, the person must be restored to their original job when the intermittent FMLA ends.
  4. Re-certify regularly. This is one of the most important tools employers have at their disposal to prevent intermittent FMLA abuse. Example: An employee’s doctor estimated he’d be out around twice every month for two to three days at a clip, but the absences are more frequent and last longer. Here, you can re-certify on the grounds the absences mark a “significant change in circumstances.”
  5. Remember fitness-for-duty certs. When employers have genuine concerns about a staffer’s ability to safely do their job because of the condition that required leave, they shouldn’t shy away from requiring a fitness-of-duty cert. While this can’t be done after each absence, it can be done fairly regularly — e.g., every 30 days or so.