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What Am I Doing Wrong?? Common FMLA Mistakes: Not Adequately Investigating a Potential FMLA Abuse SItuation

What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the twelfth in a series highlighting some of the more common mistakes employers can inadvertently make regarding FMLA administration.

Not adequately investigating a potential FMLA abuse situation to put the employer in a stronger defensive position.

While an employer may never discourage legitimate FMLA leave, if there is suspected abuse of FMLA leave, an employer should investigate. Some courts have supported an employee’s termination for FMLA abuse when the employer acted reasonably and in good faith, and could establish that there was an “honest belief” that the employee engaged in FMLA abuse.

In Capps v. Mondelez Global, LLC, Case No. 15-3839 (3d Cir. Jan. 30, 2017), an employee’s manager found in his company mailbox an anonymously-delivered newspaper clipping reporting that the employee was arrested and convicted of DUI the previous year. The company investigated and reviewed the court docket to compare dates of the employee’s court appearances with dates the employee took FMLA leave.  The date of the employee’s arrest and other court dates for the DUI proceedings matched dates the employee took FMLA leave. When asked, the employee provided documents that the employer found not to be credible. The court found that the employer had an honest belief that the employee abused FMLA, based on the correlating dates as well as the employee’s failure to provide an adequate excuse. The court stated that the employer could not be liable for FMLA interference because it “honestly believed” that the employee had abused his taking of FMLA leave.

In Gurne v. Michigan Bell Telephone Co., Case No. 10-14666 (E.D. Mich., Nov. 15, 2011), an employee took FMLA on a day she was scheduled to work until 5:00 p.m. A co-worker reported seeing the employee at a birthday party for a mutual friend between 4:30 p.m. and 6:30 p.m.  The employer investigated, but was unable to determine if the employee was actually at the party before the end of her scheduled shift. The employer nevertheless terminated the employee. The court sided with the employee, finding that the employer could not establish that it “honestly believed” that the employee had abused FMLA because the employer’s investigation was not conclusive regarding whether the employee was at the party during her shift.

An employer’s “honest belief” about FMLA abuse should be supported by adequate investigation and supporting facts. The adequacy of the investigation may be subject to legal scrutiny, and a determination can be made on whether the employer was reasonable in the steps it took to form its belief about the employee’s conduct.

For a full discussion of the Capps v. Mondelez Global, LLC case, reference the link below: https://www.natlawreview.com/article/third-circuit-says-last-call-employee-terminated-after-caught-drinking-while-fmla

 

Part 1 - Common Family Medical Leave Act Mistakes: What Am I Doing Wrong??

Part 2 - Employee Leave Notice: Common Family Medical Leave Act Mistakes, Pt 2

Part 3 - FMLA Equivalent Position: What Am I Doing Wrong? Common FMLA Mistakes

Part 4 - Counting FMLA-Protected Absences: What Am I Doing Wrong?? Common FMLA Mistakes

Part 5 - What Am I Doing Wrong? Common FMLA Mistakes – the California Edition

Part 6 - What Am I Doing Wrong?? Common FMLA Mistakes

Part 7 - Common FMLA Mistakes: In Loco Parentis Relationships: What Am I Doing Wrong??

Part 8- Properly Seeking FMLA Recertification: What Am I Doing Wrong?? Common FMLA Mistakes

Part 9 - What Am I Doing Wrong?? Common FMLA Mistakes: Assuming an Adult Son or Daughter is Not a Covered Family Member

Part 10 - What Am I Doing Wrong?? Common FMLA Mistakes: Not properly considering treatment for substance abuse as FMLA-qualifying

Part 11 - What Am I Doing Wrong?? Common FMLA Mistakes: Not Properly Considering When a Medical Recertification Can be Requested

Jackson Lewis P.C. © 2019

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About this Author

Sheri Giger, Jackson Lewis, human resource policy attorney, employment labor development lawyer,
Principal

Sheri L. Giger is a Principal in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on preventive human resource policy development, training and counseling and advice.

Ms. Giger also works on policy/handbook development, particularly for multi-state issues and compliance. She also works with compliance issues under the American with Disabilities Act, as amended, and the Family and Medical Leave Act, as amended. Ms. Giger counsels and conducts extensive training on topics such as anti-harassment...

412-338-5146
Jenna Decker, Attorney, Jackson Lewis
Attorney

Jenna M. Decker is an Associate in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Her practice focuses on representing employers in labor and employment-related litigation in federal and state courts in Pennsylvania.

Before joining Jackson Lewis, Ms. Decker worked under the General Counsel of a national construction subcontractor.

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