Firing an Employee for FMLA Fraud Is Legal, But the Proof Is Hard
Written by: David J.B. Froiland
An employee takes a day of FMLA leave, which is properly certified by her doctor. However, the employee is later spotted at a birthday party that day at 4:30 p.m. in the afternoon, which overlaps by 30 minutes with the shift she would have been working if she had not called in sick (her shift ended at 5:00 p.m.). Later, when asked what time she arrived at the party, the employee said she did not arrive until 6:00 p.m. (well after her shift ended).
After an investigation, the company denies the employee four hours of FMLA leave time — for the entire afternoon — because if she could attend the party at 4:30 p.m., then she probably could have attended work the whole afternoon. The company then concludes a) that the employee fraudulently took FMLA leave for time when she obviously did not need it; and b) that she lied during an investigation (about the time she arrived at the party). The employee was, therefore, terminated. At the time of the termination, the decision-making manager admitted he did not know what the employee’s restrictions were (i.e., whether they were lifting restrictions, versus driving restrictions, versus do not go to birthday party restrictions).
A few days ago, similar facts were litigated in the case of Gurne v. AT&T in a federal district court case in Michigan. There, the employee brought two FMLA claims against the company:
In Gurne, the court denied the company’s motion for summary judgment on both the FMLA interference claim and the FMLA retaliation claim, sending both claims forward for trial. On the interference claim, a trial was needed to decide whose testimony is more credible: the plaintiff’s (stating that she arrived at 6:00 p.m.) or that of other witnesses (stating that she arrived at 4:30 p.m.). On the retaliation claim, a trial was needed to decide whether the employer’s beliefs about the alleged fraud were honest, especially given that the employer denied FMLA leave for the whole afternoon, and given that the manager did not even check the employee’s restrictions.
Employers may legally terminate for fraud, but this is often a high standard. Proceed with caution.
Labor and Employment Trivia
Last week’s question: (Submitted by a loyal reader.) What is the blue flu? Is it legal? What is an employer's recourse?
Answer: According to the McGraw Hill Slang Dictionary the blue flu is “An imaginary disease afflicting police officers who call in sick during a work stoppage or slowdown.” Since public safety employees do not have the right to strike, the blue flu was intended to provide “cover” for employees who would otherwise be engaged in an illegal strike. The term blue flu has been extended cover similar “sickouts” by other types of workers. An employer who can prove that employees are not sick but are instead engaging in an illegal strike would have the remedies available under its respective state’s public sector collective bargaining law.
This week's question: Do labor unions file income tax returns and, if so, can we see them?
Please continue to send suggestions for trivia questions to email@example.com.
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