Fighting FMLA Abuse
Family and Medical Leave Act abuse comes in many forms. The solution to curbing it, however, will require HR leaders to rethink their current approach and suspend their trust in some employees.
By Dana S. Connell
The Family and Medical Leave Act was enacted by Congress more than 20 years ago for laudable reasons: to "balance the demands of the workplace with the needs of families," and provide job-protected leave for qualified medical and family reasons.
Recent news reports show, however, that employees sometimes abuse this privilege -- and other related privileges -- when they are out of the employer's sight. Just this year, a top administrator in the Illinois Department of Natural Resources was found to have moonlighted as a professional bass fisherman while on FMLA leave. And approximately 80 retired policemen and firemen in New York were found to have collected millions of dollars in 9/11-based disability-pension benefits by claiming they couldn't sleep, do simple arithmetic or even leave their own home -- when they were actually riding jet skis, teaching karate and deep-sea fishing.
Despite its laudable goals, FMLA leave may have become somewhat of a bad joke in your workplace, among both supervisors and coworkers. Many of your employees may have certified -- but suspicious -- intermittent FMLA leave that they use, often on short notice, whenever they do not want to work a particular shift. Given the high number of employees with certified intermittent FMLA leaves, you approach holiday weekends with your fingers crossed, hoping that enough employees will show up for work. You are forced to take their word for their FMLA use, yet you have nagging doubts about what they are really doing on the days that they are off on FMLA leave.
Meanwhile, you have canvassed the FMLA regulations and tried to assure yourself -- and the senior-management team -- you are doing everything you can to curb FMLA abuse. Your human resources department closely scrutinizes FMLA paperwork, occasionally does second opinions at the certification stage and tries to have employees schedule planned medical treatments for off days. You even have tried making employees "recertify" their FMLA leave when they engage in suspicious absences, like a heavy pattern of Friday-Monday FMLA leaves. None of these tools seem to work. Indeed, recertification often seems to backfire, with the employee's doctor approving ever-greater amounts of anticipated FMLA leave.
There is a solution. It will require you to think differently about your approach to FMLA abuse, it will require you to suspend your trust in some employees, and it will involve a financial expenditure. But, done right, it does work, and it is legal.
What Does FMLA Abuse Look Like?
In my experience, there are five basic ways that employees are tempted to, and do, abuse their personal FMLA leaves. Rather than taking care of their personal serious health conditions while out on FMLA, they do some combination of the following: work a second job; engage in manual labor; run errands and/or go shopping; engage in social or recreational activities; or sneak off on a pleasure trip. In addition, some employees abuse the FMLA leaves that are tied to their care of close family members with serious health conditions, and opt not to take care of that family member during an absence (or portion of an absence) reported as FMLA leave.
While this is not an exhaustive list, there are three telltale signs of FMLA abuse. The first sign is a high degree of FMLA usage on Fridays and Mondays, and around holidays. A second sign is where employees who are unable to take off of work using vacation or personal days solve that problem by taking FMLA leave for those same days. A third sign is when co-workers come forward, either directly or anonymously, and tell their supervisor or human resources that a particular employee is misusing FMLA and provide details regarding those activities.
How Does This More Aggressive Approach to FMLA Abuse Work?
In my experience, the most effective way to deal with FMLA abuse is to hire a private investigator to conduct lawful surveillance of employees whose use of FMLA leave is suspicious. This is a recognized and legitimate means of addressing FMLA abuse. This approach is best entered into with total management buy-in, and both legal and tactical support from counsel.
The employer will want to hire the most reputable private investigator that it can find. Ideally, it will be a private investigator with experience in FMLA surveillance, although there are parallels with workers' compensation fraud surveillance. The employer should expect that the private investigator will videotape (without audio) activity of the employee, outside his/her home, and have specific time records associated with that activity.
This initiative need not be, and should not be, directed at every employee with certified FMLA leave. Rather, the employer should identify employees who have suspicious leave patterns, or where there is some other reason to doubt the authenticity of the employee's FMLA leaves. There might be reason, for example, to believe that the employee is working a second job when out on FMLA leave.
The employer will want to strategize with the private investigator regarding the specific employee, so that the surveillance can be most effective. Care should be taken not to violate any FMLA/ADA confidentiality restrictions at this, and every other, stage.
Most private investigators will suggest a minimum of three days of surveillance per employee. Private investigators will tell you that most people have a pattern to their activity, and will repeat behaviors. Thus, even if evidence of leave abuse was hard to capture the first time it occurred, the investigator can be well positioned to get solid video of the abuse when it occurs the second time.
The surveillance activity may reveal that the employee is not abusing FMLA, which itself is valuable information. In a large percentage of suspicious cases, however, this surveillance activity will result in video showing conduct during the FMLA leave which appears to be inconsistent with the employee's purported limitations or need for leave. (That same inconsistent behavior might also be revealed on Facebook postings, by personal management observation, etc. Those situations can also be effective, but pose their own potential issues, which are beyond the scope of this article).
The employer's decision-making does not end with the private investigator's report that he/she has obtained videotape of an employee's incompatible activity while on FMLA leave. Human resource officials will want to personally review the videotape, and ensure that any and all decisionmakers do so. Typically, the employer will be analyzing whether the employee's activity on the videotape is inconsistent with his/her alleged limitations, and/or comparing that activity to the employee's ability to have done his/her job on that particular day. If needed to assist in making those comparisons, some employers choose to have their doctor or other outside medical consultant review the videotape. There is no obligation to share that videotape with the employee's doctor who signed the medical certification paperwork.
The employer will want to meet with the employee and, typically, ask the employee about his/her activity on the date in question before disclosing the surveillance. This often adds an additional reason (falsification) to the bases for termination. This meeting typically will conclude with a showing of the videotape, which provides the opportunity for an admission, or at least an opportunity to get the employee's version of events before he/she has a chance to come up with a carefully-crafted and untrue explanation.
The employer at that point needs to make a decision whether to terminate the employee. One court of appeals looks to see if the employer has made a "reasonably informed and considered decision" at that time. This standard is a good reminder that the employer should review not only the videotape but also all other documentation/evidence that the employer might rely on in making the decision.
Why Does This Approach to FMLA Abuse Work?
From a legal perspective, the FMLA recognizes that an employee who fraudulently obtains FMLA leave is not protected by the FMLA. This language works together with something known as the "honest belief" rule to support this approach to dealing with FMLA abuse.
Under the "honest belief" rule, the court looks at whether the employer had an honest belief that the employee was engaged in improper activity while on FMLA. Importantly, an employee who is fired for engaging in FMLA abuse cannot defeat a motion for summary judgment (and get to a jury) solely by disputing the nature of his/her bad acts while on FMLA. (This is hard to do in any event, since those acts have been captured on videotape). There are numerous cases involving the use of private investigators to ferret out FMLA abuse. In the overwhelming majority of those cases, the employer has successfully defended its actions based on the "honest belief" rule. (These cases are covered in detail in my article at 30 Employee Relations Law Journal 3 (Spring 2014)).
From a practical standpoint, the experience of human resources officials who have used private investigator surveillance to address FMLA abuse supports the hopes -- and should calm the fears -- of those who are considering this approach. First, these officials confirm that the approach does have a deterrent effect -- FMLA abuse drops off after an employee is fired for FMLA abuse and other employees become aware that indiscretions while on FMLA leave will be punished. Second, the fear that human resources will lose credibility for such "big brother" tactics is largely unwarranted. Even companies who take very aggressive approaches to FMLA abuse often find that their workforces -- and especially their good employees, who have unfairly borne the brunt of their co-workers' FMLA abuse -- thank them for doing so, and bear no grudges. Human resources can prepare for this issue by emphasizing their support of legitimate FMLA, while at the same time communicating that "crime does not pay."
Employees are abusing FMLA, and employers often are using the wrong tools as they grapple with the problem. This article hopefully provides some eye-opening thoughts on an option that employers have at their disposal, but may not have fully understood and used.
Dana Connell is a Chicago-based shareholder with Littler Mendelson.