[author: Ryan N. Parsons]
One of the most challenging aspects of managing a workforce is policing FMLA abuse. One employer attempted to address the problem by hiring a private investigator to follow suspected FMLA abusers. When the investigator reported that an employee was abusing his leave, the employee was fired. The Seventh Circuit Court of Appeals determined in Scruggs v. Carrier Corporation that the employer’s “honest suspicion” was enough to allow the employer to terminate the employee and to shield it from FMLA liability. Carrier granted intermittent FMLA leave to Daryl Scruggs so that he could care for his elderly mother, who resided in a nursing home. According to Mr. Scruggs, the purpose of the leave was to take his mother to doctors’ appointments. On July 24, 2007, Mr. Scruggs informed Carrier that he needed to take the entire day off for FMLA leave. An investigator stationed himself outside Mr. Scruggs’s home, but during the entire day, Mr. Scruggs’s car never left his driveway. Mr. Scruggs himself was seen only once, when he emerged from his home to pick up his mail and immediately returned inside.
Because the purpose of the leave was for Mr. Scruggs to take his mother to the doctor, Carrier was understandably upset when it appeared that Mr. Scruggs never left his house. Carrier gave Mr. Scruggs the chance to explain himself. At first, Mr. Scruggs could not explain himself. Eventually, he developed a convoluted story where he left his house via the backdoor, rode to his mother’s house with his brother, and returned via a neighbor’s house. Even then, there were still holes in Mr. Scruggs’s story, including that he could not remember the neighbor’s name when asked. Because Carrier did not believe Mr. Scruggs’s account, Carrier terminated his employment.
Mr. Scruggs sued, claiming that his FMLA rights were violated. The Seventh Circuit determined that Carrier did not interfere with Mr. Scruggs’s FMLA rights or retaliate against him. Typically, when the parties to a lawsuit disagree about what happened, a trial is required to resolve the dispute. Here, however, the court determined that even if Mr. Scruggs’s account was accurate, it made no difference. The key was that Carrier had an “honest suspicion” that Mr. Scruggs had abused his FMLA leave. Because Carrier’s investigation was evidence of abuse, and because Mr. Scruggs’s own account was contradictory and incomplete, the court held that Carrier had an honest suspicion that Mr. Scruggs was abusing his leave. Because Carrier had an honest suspicion, it could not be liable for an FMLA violation.
While the use of a private investigator worked out well for the employer in this case, and FMLA abuse is a serious problem, there are a number of serious considerations that employers must make before hiring investigators to track employees. First, while the law in the Seventh Circuit (Illinois, Indiana, and Wisconsin) seems clear enough, other state and federal courts may not be so deferential to employer surveillance of employees. Second, an employer must seriously evaluate the impact of surveillance on its workforce. Perhaps employees will be resentful of the idea that their employer is going to such great lengths to watch them. On the other hand, hardworking employees may appreciate the fact that the employer is not letting other employees shirk their responsibilities and abuse the system. Finally, cost must be a factor: reputable private investigators can be very expensive, so the employer must make an initial determination of whether an investigator can root out enough abuse to justify the expense.