Managing FMLA Fraud: Investigate, Don’t Assume

Bryan Cave Leighton Paisner
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[co-author: Christy Phanthavong]

Continuing our three-part series on managing FMLA fraud (see our initial post here), this post addresses the importance of conducting a reasonable investigation, prior to taking adverse action, to develop a supportable “honest belief” of FMLA fraud.

The case of Hosler v. Fulkroad, No. 13-cv-1153, 2015 U.S. Dist. LEXIS 80801 (M.D. Penn. June 23, 2015), provides an excellent example of this principle. The employee requested leave for surgery and recovery, and submitted a doctor’s note in support of the request. The employer purportedly doubted the need for leave and terminated the employee while she was out.

Not only did the jury find in favor of the employee on her FMLA interference claim, but the court awarded liquidated damages, finding no credible evidence that the employer had a reasonable, good faith basis for its interference with the employee’s FMLA rights.

The court pointed out that the employer could not provide any factual basis for his personal opinion that the doctor’s note was fraudulent. Indeed, despite supposedly believing that the note did not come from the doctor’s office and that someone had forged the doctor’s signature, the employer failed to make any kind of reasonable inquiry with either the employee or her doctor concerning the validity of the note. Thus, the court imposed “significant consequences” for the employer’s “arbitrary, erroneous, subjective, and uninformed” action.

The importance of asking questions was also demonstrated in Dandridge v. N. Am. Fuel Sys. Remfg., No. 13-cv-573, 2015 WL 1197541 (W.D. Mich. Mar. 16, 2015). Video surveillance of an employee who called in an intermittent FMLA absence for migraines showed him entering and leaving a commercial property he owned during the time he was supposed to be at work. Relying on the video and the fact that the employee had, on four prior occasions, taken leave at the same time as another employee with whom he co-owned the property, the employer had the employee come in to the workplace and, without giving him a chance to explain, told him to resign or be fired for abusing FMLA leave.

In rejecting the employer’s motion for summary judgment on the employee’s FMLA retaliation claim, the court noted the employee had an explanation for the situation: he had received notice that the property had been burglarized and the police were involved, so he went to the property despite continuing to suffer from his migraine. The court faulted the employer for failing to investigate further before concluding that the employee was not incapacitated and unable to work, stating that while an investigation does not have to be “optimal,” this investigation failed because it was limited and singularly focused on the video recording.

The bottom line: While the legal standard for demonstrating an “honest belief” of FMLA fraud to defeat an FMLA claim varies by jurisdiction, it is always a good idea to avoid acting rashly or based on assumptions. To greatly increase chances of prevailing, employers should ensure that they conduct a reasonable investigation that includes gathering information from the employee and/or the employee’s provider as appropriate, before taking adverse action.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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