[co-author: Christy Phanthavong]

This last post in our three-part series on managing FMLA fraud is about how negative commentary – including emails with smiley face emoticons – can subvert an effort to show that a termination decision was based on an honest belief that the employee was misusing FMLA leave. (The first two posts in our series are available here and here.)

The case of Apatoff v. Munich Re Am. Servs., No. 11-7570, 2014 U.S. Dist. LEXIS 106665 (D.N.J. Aug. 1, 2014), involved an employee who took extended FMLA leave for asthma. Over the holidays, video surveillance showed the employee shopping on more than one occasion and carrying boxes as she moved into a new home. Based on this evidence, she was terminated for abusing FMLA leave.

During the ensuing litigation, the employee provided evidence that her physician had instructed her to engage in exercise and stay active, and had told her to remain on leave to determine whether airborne material in the workplace triggered her asthma. In its summary judgment motion, the employer argued that, even though it may have been mistaken, the employee’s FMLA retaliation claim should fail because the employer honestly believed the employee was misusing her leave.

The court rejected this argument, noting that the employer had failed to obtain information about the parameters of the employee’s medical restrictions before terminating her. Added to this fact was evidence that the employer’s management staff had sent email messages to each other that included comments like, “Nice. Where do we go from here,” in connection with information about the surveillance results, and had used smiley face emoticons when discussing the employee’s termination. This email commentary combined with the lack of follow-up during the investigation suggested that the termination was retaliation for the inconvenience caused by the employee’s FMLA absence.

Unfortunately, negative and snarky remarks like those involved in Apatoff are all too common in the workplace. Even leave administrators and supervisors who generally recognize the value of the leave rights and protections provided by the FMLA may find themselves inadvertently creating “Exhibit A” for a trial by expressing frustrations with employees’ use of FMLA and perceptions of FMLA fraud orally or in writing.

Lesson to learn: Avoid negative and emotional commentary in both general communications concerning the FMLA and communications about investigations into potential FMLA fraud. Employers should stick to the facts and conduct a proper investigation to avoid undermining efforts at managing the FMLA in the workplace.