FMLA Abuse and Employee Surveillance

An increasingly prevalent area of surveillance that the courts seem to be upholding is the hiring of private investigators to conduct surveillance on employees that are suspected of taking leave dishonestly under the Family Medical Leave Act.  While still a relatively new development, this is one in which the courts are, so far, siding with employers.  With that said, however, this is a very delicate topic as it deals with surveilling employees when they are not at work.  In most cases, there are heavy suspicions of the employee abusing their FMLA leave before any surveillance is conducted, and it is highly encouraged that employers seek legal counsel before considering this option.  (Virginia Business Law Blog)

The FMLA prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise any right given under FMLA.   And, it is one of the largest employee abuse areas for employers.   One of the bases upon which an employer can defeat an FMLA "interference" claim is obtaining supporting documentation/evidence by the employer that an employee did not, in fact, take leave for a purpose authorized under the FMLA. 

I personally had a case 4 years ago in which an employee was placed on FMLA.  A week later we found out that the employee was moonlighting for another company.  After careful investigation, I found that the employee was performing the same tasks for the second company that the employee was restricted (medical requirements) from performing for us, his primary employer.

Employer surveillance of employees outside the workplace is an extremely touchy subject.  And, there are confusing legal issues to tackle.

In the Seventh Circuit Court decision, Vail v. Raybestos, "employers are allowed to spy on their employees not only when they are suspicious the employee is taking fraudulent leave under the FMLA, but also in any situation where the information gained by surveillance may be used as evidence to support the employer's honest belief the employee is taking fraudulent leave."    Diana Vail received more than 33 days of approved leave for chronic migraines.  The company noticed a pattern in regards to her leave and engaged the services of an off-duty police sergeant to monitor her activities.  The employee was found working for her husbands business during peak times.  The court dismissed her claim for interference stating that the plaintiff must show she took leave "for the intended purpose of the leave."

In Colburn v. Parker Hannifin (1st Cir., 2005), the employee claimed to be too dizzy to drive to work, but was caught working out at the gym while on leave.  The court found that the employer's surveillance did not violate the employees FMLA leave.

Tillman v. Ohio Bell Telephone, (6th Cir., 2011).  This case is note-worthy in that the employer sent the surveillance footage to an outside medical consultant for analysis before it made its employment decision. The consultant issued a report of her findings in which she concluded that, in her professional opinion, Tillman's activities on his days off were inconsistent with the medical restrictions.

When presented with evidence of suspected FMLA abuse, you must first independently investigate the issue before taking any action.  Avoid any conduct that interferes with FMLA.  Validate the accuracy of your suspicion before taking an adverse action against the employee.  Secondly be sure that any surveillance does not go too far and invades the privacy of the employee or the employee family members.