WikiLeaks made rather shocking news yesterday with the publication of documents purportedly showing that the CIA possessed the tools to turn common household and personal goods into surveillance vehicles. For example, one tool could make certain smart televisions appear to be off but actually be recording and sending the surrounding conversations to the CIA.
This relates to a common question employers ask related to surveillance: what can I do to investigate an employee who claims to need Family and Medical Leave Act leave but I have reason to believe they’re really just skipping out on work? While the answer to this question could go in any number of directions, a good starting point to understand common compliance issues is the case of Turner v. Parker-Hannifin Corporation, (W.D. Mich. April 12, 2012).
In Turner, the plaintiff performed manual labor for the employer. Prior to his litigation against the employer, the plaintiff was most recently granted continuous FMLA leave related to a back strain, but in years past he also used intermittent FMLA for his diabetes. After a period of continuous FMLA leave following a hunting trip and a history of using intermittent leave near weekends and holidays, the employer began to suspect abuse. The company decided to hire a private investigator to conduct an investigation into what the plaintiff did while on FMLA leave.
The investigator’s report to the company showed that the plaintiff was hunting during the time he was on FMLA leave. Acting on this report, the employer terminated the plaintiff’s employment for his dishonesty and his violation of its code of conduct. Of course, the plaintiff subsequently filed a lawsuit with claims of FMLA interference and retaliation.
When I talk about this case with audiences (quick plug – sign up for our upcoming seminars here and here!), it never fails to surprise them to learn that the judge denied the company’s motion for summary judgment in this case. The court essentially had two major issues with the employer’s course of conduct here.
First, the information the company received from the investigation report did not indicate whether the employee’s “activities were inconsistent with the restrictions placed on him by his doctors.” All the report revealed was that the plaintiff walked into the woods with a gun. It did not comment on whether he was doing things related to his need for FMLA leave and his job like heavy lifting, bending, or twisting. Without having more information, the court determined a jury should decide whether the company was correct to determine that the plaintiff having gone hunting demonstrated his ability to work.
Second, the court determined there was evidence to support the conclusion that the company was targeting the plaintiff because of his FMLA leave. The plaintiff demonstrated that the employer did not typically use surveillance on employees who took FMLA leave. The plaintiff also presented several e-mails showing the plaintiff’s superiors were frustrated by the number of FMLA leave days he took. These e-mails led the court to decide that a jury could conclude the plaintiff’s prior FMLA use influenced the company’s decision to terminate his employment.
There are two important lessons from Turner for employers considering using surveillance methods to root out FMLA abuse. While employers can rely on investigations to find out whether employees are being honest (and can make decisions to discipline or end employment based on dishonesty), employers need to make sure they have good information that is relevant to the certification for FMLA leave before taking an adverse action. In other words, can you answer whether what the employee is doing on FMLA leave is allowed by the restrictions that are leading to the need for FMLA leave?
Additionally, Turner emphasizes the need for a consistent approach when responding to suspected FMLA abuse. If an employer is undertaking a unique response to an employee’s use of FMLA leave, it can raise some eyebrows. Employers may need to consider asking some self-critical questions about how and why it is responding before acting to avoid claims of interference or retaliation.