Labor and Employment Law Weekly Update

28 November 2011 Publication

Legal News: Employment Law Update

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:

  • FMLA Interference Claim. The starting point for an interference claim is the underlying leave that an employee is by statute entitled to take. An interference claim alleges that the company interfered with the employee’s underlying FMLA rights when it improperly denied FMLA leave. Eligible employees are entitled to FMLA leave when they qualify for it, period. If the FMLA leave ultimately should have been granted (in Gurne, the four hours of FMLA leave in the afternoon), then the employee wins the FMLA interference claim, regardless of whether the employer acted with good intentions.
  • FMLA Retaliation Claim. Unlike an interference claim, a retaliation claim is based primarily on the employer’s motive. This is because retaliation claims impose liability on employers that act against employees specifically because those employees invoked their FMLA rights. Thus, it is impermissible to treat employees less favorably (for example by terminating them) if the motivation is to retaliate for FMLA usage.

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

Legal News is part of our ongoing commitment to providing legal insight to our clients and colleagues. If you have any questions about or would like to discuss these topics further, please contact your Foley attorney or the author of this week’s issue.

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