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TRANSCRIPT
11/12/2015
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GROUNDING YOURFREQUENT FLYERS
PREVENTING FMLA ABUSE
Joe Murray
(404) 525-8622
November 10, 2015
HOW BIG OF APROBLEM?
2013 DOL survey:
• 3% of covered worksites reportedabuse
2007 SHRM survey:
• 39% of HR professionals grantedleave they believed to beillegitimate
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WHAT DO YOU THINK?
In the last three years, doyou believe that at leastone employee in yourorganization has abusedhis or her FMLA leaverights?
OVERVIEW
• Time off
• 12 weeks of leave in 12 monthperiod for most FMLA events
• 26 weeks of leave in 12 monthperiod for military caregiverleave
• 26 weeks is combined totalleave
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OVERVIEW
• Eligibility
• Work 12 months for company
• Work 1,250 hours in last 12months
• Employer must have 50employees within 75 miles
OVERVIEW• Qualifying reasons
• Birth/care of child
• Placement/care of foster or adoptedchild
• Self, spouse, son/daughter, or parentwith serious health condition
• Military qualifying exigency
• Military caregiver
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OVERVIEW
• Types of leave
• Block
• Intermittent
• Reduced schedule
OVERVIEW
• Employer liability
• Interference (no intent)
• Retaliation (intent required)
Which kind is easier to defend?
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WHAT DO YOU THINK?
1. Terminate NOW
2. Wait and See
3. Depends onCircumstances
Better to terminate an employee whois out on leave or wait until thereturn?
“HONEST BELIEF”
• Judicially created defense
• Employer does not need toestablish employee actuallyabused FMLA leave entitlement
• Employer need onlydemonstrate honest beliefthat abuse was occurring
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“HONEST BELIEF”
• Some courts also require employer toshow it “reasonably relied” uponparticular facts suggesting abuse
• Other courts require showing thatbelief of abuse was
“reasonable and honest”
“HONEST BELIEF”
• Employee may still prove that allegedabuse was just a pretext for retaliation
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COMMON TYPESOF ABUSE
• Moonlighting/second job
• Personal matters
• Failing to take care of familymembers
• Extended vacations
• Recreational activities(partying etc.)
WHAT DO YOU THINK?
1. Yes
2. No
3. Depends
Can employees work a second jobwhile on FMLA leave?
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MOONLIGHTING
Pharakhone v. Nissan N.A. (6th Cir.)
• Employer had documented policy againstsecond job without approval while on leave
• Took leave to care for wife and child afterbirth
• Informed employer he was going torun the family restaurant
MOONLIGHTING
Pharakhone (cont.)
• Ignored employer’s warning about notperforming second job
• Employee terminated for FMLA abuse
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WHAT DO YOU THINK?
1. Yes
2. No
Was Pharakhone’s terminationupheld by the court?
MOONLIGHTING
Pharakhone (cont.)
• FMLA permits employers to adopt“uniformly-applied policy governing outsideor supplemental employment”
• Court found no evidence company hadulterior motive for termination
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MOONLIGHTING
Agee v. Northwest Airlines, Inc. (E.D. Mich.)
• Employer apparently did not havepolicy against moonlighting
• Employee went out on FMLA leave forcondition that allegedly rendered himincapable of working
MOONLIGHTING
Agee (cont.)
• Employee then began working on aranch caring for 50 horses
• Terminated for lying about reason forleave
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WHAT DO YOU THINK?
1. Yes
2. No
Was Agee’s termination upheldby the court?
MOONLIGHTING
Agee (cont.)
• Court determined termination wasbased on employee’s lie, not his use ofFMLA
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PERSONAL ERRANDS
Kitts v. General North Telephone, Inc.(S.D. Oh.)
• Employee was authorized to takeintermittent leave for panic disorder
• Need for leave could be up to once aweek
PERSONAL ERRANDS
Kitts (cont.)
• Employer denied PTO to attend parent-teacher conference
• On day of conference, Kitts took FMLAleave, then later decided she feltbetter and attended conference
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PERSONAL ERRANDS
Kitts (cont.)
• Supervisor became suspicious, but Kittsdenied going to conference
• Employer hired P.I. and Kitts admittedto lying
• Employer terminated Kitts formisrepresenting health status forabsence
WHAT DO YOU THINK?
1. Yes
2. No
Was Kitts’ termination upheld by thecourt?
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PERSONAL ERRANDS
Kitts (cont.)
• FMLA does not prohibit investigatingalleged dishonesty or terminatingfor misconduct
PERSONAL ERRANDSMosley v. Hedges (N.D. Ill.)
• Employer suspected FMLA abuse andhired P.I.
• P.I. observed Mosley walking, driving,running errands, and shopping
• Mosley terminated for engaging inactivities contrary to medicallimitations
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WHAT DO YOU THINK?
1. Yes
2. No
Was Mosley’s termination upheld bythe court?
PERSONAL ERRANDSMosley (cont.)
• Company honestly believed employeewas misusing FMLA
BUT BEWARE
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PERSONAL ERRANDSNelson v. Oshkosh Truck Corp.(E.D. Wis.)
• “FMLA contains no requirement that anindividual on intermittent leave mustimmediately return home, shut theblinds, and emerge only whenprepared to work.”
CARING FOR FAMILY MEMBERS
• How much time do youhave to spend caring forfamily member?
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CARING FOR FAMILY MEMBERS
Scruggs v. Carrier Corp. (7th Cir.)
• Employee had FMLA to take mother todoctor’s appointment every six months
• P.I.’s video surveillance showedScruggs not leaving own house onday he had taken leave to takemother to doctor
• Employer terminated Scruggs
WHAT DO YOU THINK?
1. Yes
2. No
Was Scruggs’ termination upheldby the court?
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CARING FOR FAMILY MEMBERS
Stonum v. U.S. Airways, Inc. (S.D. Oh.)
• Obtained FMLA leave to care for mother
• Co-worker informed supervisor thatStonum was using leave to do other things
• P.I. hired and observed Stonum’s activities
• On one occasion, Stonum took a fullday absence and spent 12 minuteswith mother
CARING FOR FAMILY MEMBERS
Stonum (cont.)
• On another day, he didn’t visit at all
• Stonum denied abuse and employerterminated her for repeatedly misusingher FMLA leave
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WHAT DO YOU THINK?
1. Yes
2. No
Was Stonum’s termination upheldby the court?
TAKING OR EXTENDING VACATION
Hughes v. City of Bethlehem (3rd Cir.)
• “Whatever happens in Las Vegas doesnot necessarily stay in Las Vegas!”
• Employee is diabetic
• Went to Las Vegas for vacation andpermanent lip/eyebrow tattoos forcosmetic reasons
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TAKING OR EXTENDING VACATION
Hughes (cont.)
• Timing conflicted with two days shewas supposed to work, so she called insick
• “Anonymous” note claimed Hugheswas improperly using sick leave
TAKING OR EXTENDING VACATION
Hughes (cont.)
• Hughes denied going to Los Vegas
• Employer ultimately determinedHughes had been in Los Vegas, andterminated her employment
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WHAT DO YOU THINK?
1. Yes
2. No
Was Hughes’ termination upheldby the court?
TAKING OR EXTENDING VACATION
Hughes (cont.)
• No interference – calling in “sick” didnot provide notice FMLA leave wasneeded
• Legitimate reason for termination –improper use of sick leave andattempt to cover up herwhereabouts
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HAVING “FUN” DURING LEAVE
Jaszczyszyn v. Advantage HealthPhysicians Network (6th Cir.)
• Employee on intermittent leave for backpain that could flare up “about fourtimes a month”
• “Friend” posted pictures on Facebookof employee attending Polishheritage “festival”
HAVING “FUN” DURING LEAVE
Jaszczyszyn (cont.)
• Other employees were upset at havingto cover for employee while she was outhaving fun and reported her
• Employer investigated and terminatedemployee for FMLA abuse
• Employee sued for interference
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WHAT DO YOU THINK?
1. Yes
2. No
Was Jaszczyszyn’s termination upheld bythe court?
HAVING “FUN” DURING LEAVE
Jaszczyszyn (cont.)
• Interference claim failed because shereceived all leave to which she wasentitled
• Retaliation claim failed – dishonesty waslegitimate, non-retaliatory reason fortermination
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ACTIVITY OUTSIDERESTRICTIONS
Dalpiaz v. Carbon County (10th Cir.)
• Employee was benefits administratorwho handled FMLA for county
• Leave due to a back condition
• Co-workers reported physical activitythat exceeded restrictions
ACTIVITY OUTSIDERESTRICTIONS
Dalpiaz (cont.)
• Employee lied about activity and didnot cooperate with requestedfollow-up
• County terminated employment
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WHAT DO YOU THINK?
1. Yes
2. No
Was Dalpaiz’s termination upheld bythe court?
“HONEST BELIEF”
• Reviewed 35 court cases
• In each, employee terminated(or suspended in one case)for suspected FMLA abuse
• In each, employee suedemployer for interference,retaliation, or both
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WHAT DO YOU THINK?
1. 0 – 33%
2. 34 – 67%
3. 68 – 100%
What was the employer’s “winpercentage” for those cases?
HONEST BELIEF
Lessons learned
• Surveillance can be valuable
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HONEST BELIEF
Lessons learned
• Listen to suspected abuser
• Can’t defend actionsabsent a reasonableinvestigation
HONEST BELIEF
Lessons learned
• Implement FMLA abuse policies
• No moonlighting or work while onleave
• Courts have also upheld travelrestrictions while on leave
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INTERMITTENT LEAVE ABUSE
Employee exceeds estimated leaveamount?
• How much is excessive?
• Use common sense and give benefitof the doubt when reasonable
• Medical certification only asks foran “estimate”
INTERMITTENT LEAVE ABUSE
Addressing “excessive” intermittentleave?
• Recertification because:
• Estimate significantly exceeded
• Circumstances have otherwisechanged
• Other information casts doubtson certification’s validity
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WHAT DO YOU THINK?
Have you terminated an employee forsuspected abuse or fraud?
DISRUPTIVE LEAVE
Seek leave schedule thataccommodates employer’s preference
• Requires reasonable effort by employee
• Employer may actually facilitatescheduling of doctor’s appointments
• Don’t discuss the actual condition
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DISRUPTIVE LEAVE
Require employee to use PTO when allowed
• Employer policy controls
• Can only require when paid leave couldbe taken for this type of leave
• E.g., cannot require use of paid sickleave when caring for family memberunless sick leave can be so usedabsent FMLA leave
TRANSFERRING AN EMPLOYEE
• Employer’s choice when leave isforeseeable for planned treatment
• Must be agreed upon for pregnancy,birth or adoption/placement
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TRANSFERRING AN EMPLOYEE
• Limitations:
• Must better accommodate periods ofleave than regular position
• Same pay/benefits (even if transferredto position that is normally lower pay)
• Cannot require employee to takemore leave than medicallynecessary
TRANSFERRING AN EMPLOYEE
• Limitations (cont.):
• Cannot discourage intermittent leave(i.e., day shift to night shift transfer)
• Return to prior position whenintermittent leave no longer needed
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ADDITIONAL CONTROLS• Establish employees’ expectations of
notice of leave when foreseeable
• Maximize use of medical certificationavailability
• Use the “rolling” 12-month period
• Limit leave increments to shortestperiod of time used by payroll,but must be 1 hour or less
Questions?