EDLP 704 – Legal Perspectives
Philip Holmes, Rob Tench, Roberta Walker
March 5, 2014
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The Family Medical Leave Act
(FMLA) entitles eligible employees of covered
employers to take unpaid, job-protected leave
for specified family and medical reasons with
continuation of group health insurance coverage
under the same terms and conditions as if the
employee had not taken leave.
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FMLA entitles employees to:
• Twelve workweeks of leave in a 12-month
period for:
– the birth of a child and to care for the
newborn child within one year of birth;
– the placement with the employee of a child
for adoption or foster care and to care for the
newly placed child within one year of
placement;
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FMLA entitles employees to:
– to care for the employee’s spouse, child, or
parent who has a serious health condition;
– a serious health condition that makes the
employee unable to perform the essential
functions of his or her job;
– any qualifying exigency arising out of the
fact that the employee’s spouse, son,
daughter, or parent is a covered military
member on “covered active duty;” or
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FMLA entitles employees to:
• Twenty-six workweeks of leave during a
single 12-month period to care for a covered
service member with a serious injury or
illness if the eligible employee is the service
member’s spouse, son, daughter, parent, or
next of kin (military caregiver leave).
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Item One – Roberta Walker
BRIEFLY SUMMARIZE THE ARTICLE, DESCRIBING
ANY RESEARCH, THEORIES, ANY FINDINGS OR
CONCLUSIONS
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No More Half Measures: A Case-Based
Approach for Addressing FMLA Abuse
by: Dana S. Connell
Cases presented in this article:
confirm that employees are abusing FMLA.
identify lawful options that an employer may
take to obtain “line-of-sight” to the employee’s
activity while on leave.
identify a process for preparing
for and dealing with FMLA
abuse situations.
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Employees are entitled to FMLA
leave only if they have a health condition “that
makes the employee unable to perform the
functions of the position of such an employee.”
FMLA’s restoration obligation is limited to
employees on leave “for the intended purpose of
the leave.”
FMLA regulations recognize that an employee “has
no greater right to reinstatement … than if the
employee had been continually employed during
the FMLA leave period.”
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originated in Kariotis v. Navistar Transportation
Corp. wherein the court sided with the employee,
stating, “the question is not whether the
employer’s reasons for a decision are right but
whether the employer’s description of its reasons
is honest .”
10
The “Honest Belief” Rule
The Sixth Circuit, in Smith v. Chrysler Corporation,
imposed additional requirements on the employer,
noting that the employer has to show that its
belief is “reasonably grounded on particularized
facts” that are available during the employment
decision.
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Seven Basic Types of
Employee FMLA Abuse:
1. Working a second job “on the side,” in
violation of an express written policy
prohibiting the employee from doing so
2. Working a second job on the side, where
there is no written policy that specifically
prohibits it
3. Engaging in manual labor
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Seven Basic Types of
Employee FMLA Abuse:
4. Running errands or shopping
5. Partying or engaging in other social or
recreational activities
6. Sneaking off on a pleasure trip
7. Failing to take care of a family member (if on
family-care)
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Working on the Side During FMLA
in Violation of an Express Policy
• An employer may apply a “no moonlighting
policy” to employees on FMLA leave, as long as
it also applies that policy to employees on
other leaves of absence.
• Vail v. Raybestos Products Co .
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Working on the Side During FMLA
When There is No Written Policy
• Lackman v. Recovery Services of New Jersey, Inc.
• Dietrich v. Susquehanna Valley Surgery Center
“Any employee … might reasonably expect the
employer to take disciplinary action if he or she is
absent from work and found to be instead engaging in
some other side business. This is especially true if the
employee failed to notify his or her employer of the
impending absence, but such behavior can reasonably
be seen as dishonest and worthy of discipline even if
the excused absence was requested.”
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Employee Engages in Manual Labor
During FMLA
• Crouch v. Whirlpool Corp.
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Employee Runs Errands or Goes
Shopping While on FMLA
• Callison v. City of Philadelphia – The “stay-athome” policy required an employee “to
remain at home except for personal needs
related to the reason for being on sick leave.”
• Colburn v. Park-Hannifin/Nichols
Portland Division
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Employee “Parties” While on FMLA
Jaszczyszyn v. Advantage Health Physician
Network- The Sixth Circuit found that the
employer “rightfully considered workplace
FMLA fraud to be a serious issue” and affirmed
the dismissal of Jaszczyszyn’s FMLA retaliation
claim because “she failed to disprove the
employer’s honest belief that her behavior in
the photos contradicted her claims of total
disability.”
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Employee Sneaks Off on Pleasure Trip
• Pellegrino v. CWA
• Lineberry v. Richards, et al.
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Employee Fails to Take Care of
Family Member on FMLA
• Scruggs v. Carrier Corp.
• Hamm v. Nestle USA, Inc.
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Suspicious Behavior
Suggesting FMLA Abuse
• Taking FMLA after being denied vacation or
personal leave
• A pattern of Friday and/or Monday absences
• Direct or anonymous complaints or tips from
coworkers
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The article review revealed…
• the employer’s capacity to take action
concerning various types of FMLA abuse
• the value of policies, including those that
prohibit falsification
• that surveillance videos, private investigators,
Facebook, asking effective questions and
placing phone calls are lawful, compelling and
legitimate means of addressing
FMLA abuse
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Item Two – Phil Holmes and Rob Tench
WHAT IS YOUR PERCEPTION OF THE RIGOR OF THE
RESEARCH DESCRIBED IN THE ARTICLE?
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Rigorous - Pro
• The article is recently published (Spring, 2014) in
a well-respected legal publication (Employee
Relations Law Journal)
• The author’s research was extensive
– More than 70 court cases were reviewed
– Interpretation and expansion of court rulings in
support of possible responses to FMLA abuse were
detailed and in-depth
– More than five pages of end notes presented
• Article was pragmatic and “real world”
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Rigorous - Cons
• The author is a practicing attorney, not a legal
scholar or academician
• No literature review is provided, and no
references to other articles, books, or studies
are cited in the text
• The author “represents management in all
types of employment issues and litigation,”
and reveals surprising animus toward
employees who abuse FMLA
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Rigorous - Cons
• The article is tactical, and focuses only on
methods to “catch” FMLA abusers and on the
judicial review and sanction of those methods.
• The extent of FMLA abuse in relation to all FMLA
users is not reported, nor does the author
explore:
– the reasons behind FMLA abuse
– the possible ramifications in the workplace of
following the author’s advice, such as the use of:
• videotaping
• co-workers as informants
• private investigators
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Rigorous - Cons
• The author did not address key and relevant
questions:
– Might FMLA abuses be prevented by better
communication to potential or actual FMLA users?
– To what extent does FMLA abuse reflect underlying
conflicts between management and employees?
• Of the 13 cases of FMLA abuse that the author cited,
69% (9 of the abusers) involved non-managerial
employees; only 1 FMLA abuser is clearly a white-collar
employee.
• The fact that the majority of FMLA abusers (cited in the
article, at least) are “front-line” employees is neither
called out nor explored.
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Item Three – Rob Tench
WHAT KIND OF POLICY IS BEING
DISCUSSED? EXPLAIN.
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Policy Type
• FMLA and FMLA Abuse Policies are
regulatory because they:
– contain formalized rules.
– require or prohibit certain behaviors.
– imply enforcement and penalties for those
who break the policies.
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Policy Type
• A FMLA Abuse Policy also has elements of a
redistributive policy because it:
– shifts power from employees who are abusing
FMLA to employers who are trying to either stop
the abuse or impose consequences for that
abuse.
– generates intense conflict between employees
and employers who are unlikely to compromise
or negotiate their differences.
– is marked by sharp divisions and ideological
intensity.
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Item Four – Phil Holmes and Rob Tench
WHAT STRATEGIES MIGHT BE USEFUL IN
PROMOTING SUPPORT FOR THE POLICY?
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Promoting Policy Support
• This article does not promote or explore the responsible
use of the FMLA policy, but instead focuses on:
– limitations within the language of FMLA for addressing
potential abuses.
– lawful options (not spelled out by FMLA but supported
by recent court cases) for documenting FMLA abuse
and responding appropriately.
• Essentially, the article implies de facto amendments to
FMLA, in response to the policy’s failure to spell out the
options management has when responding to FMLA
abuse.
• These de facto amendments reflect judicial guidance in the
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absence of statutory language.
Promoting Policy Support
• The author’s intention is not to fix FMLA but rather to
help employers work within a broken FMLA; thus, the
author does not “support” the FMLA policy.
• No suggestions are made regarding methods to:
– educate employees about FMLA and how to avoid FMLA
abuse.
– ensure that physicians do not “rubber stamp” FMLA
requests and are held accountable when they do.
– decrease the adversarial relationship between employers
and employees regarding FMLA.
– understand the underlying non-FMLA issues between
employees and employers that may lead some employees
to abuse FMLA.
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Suggested Strategies
• Develop buy-in for the policy among
executives, managers, supervisors, and those
responsible for enforcing and implementing
the policy.
• Develop buy-in from employees affected by
the policy.
• Identify those most likely to support the new
policy and cultivate their support (“many
employees are ‘rooting’ for the employer to
fix FMLA abuse problems”).
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Suggested Strategies
• Conduct an effective campaign to sell the
policy
• Educate all employees on the policy
• Promote the positive aspects and
consequences of the policy
– Fairness issue
– Increased productivity
– Decreased absenteeism
– Decreased abuse of FMLA
– Legitimate use of FMLA
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Item Five – Phil Holmes
WHAT ARE THE BENEFITS OF SUCH
A POLICY?
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Policy Benefits
• The author does not spell out the benefits of
FMLA; the benefits of the author’s implied
amendments to FMLA are:
– reduction in FMLA abuse (or increased
apprehension and punishment of abusers).
• The amount of current FMLA abuse is not reported
nor are the financial implications of that abuse.
– reduction in management confusion and
frustration regarding the failure of the statutory
language to define what one can do in response
to FMLA abuse.
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Item Six – Phil Holmes
WHAT MIGHT BE UNINTENDED CONSEQUENCES OR
DISADVANTAGES OF SUCH A POLICY?
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Unintended Consequences or
Disadvantages of FMLA
• The FMLA abuses depicted in the article are
among the unintended consequences or
disadvantages of FMLA.
– These flaws result from weaknesses in the
statutory language of FMLA and not from the
actual thrust or intention of the policy itself.
– No other unintended consequences or
disadvantages of FMLA are explicitly noted by
the author.
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Unintended Consequences or
Disadvantages of FMLA
• The unintended consequences or
disadvantages of the author’s implied
amendments are:
– increased antagonism between employees and
employers;
– distraction from the underling causes of FMLA
abuse, such as issues between employers and
employees; and
– implicit reduction in the perceived need to
tighten the statutory language of FMLA.
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Item Seven – Phil Holmes, Rob Tench, and Roberta Walker
WHAT DID YOU LEARN THAT IS APPLICABLE TO YOU
IN YOUR WORKPLACE OR TO YOUR ROLE AS A
LEADER?
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What did we learn?
• The key factor in FMLA abuse is whether an
employer makes a reasonably informed and
considered decision before taking an adverse
action against an employee.
• The question is not whether the employer’s
reasons for a decision are right but whether
the employer’s reasons are honest.
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• Statutory flaws are not necessarily fatal to a
policy
– The courts will intercede to provide post-facto
guidance
• Some methods of monitoring FMLA users for
possible FMLA abuse that might seem illegal
have actually been sanctioned by the courts.
– Electronic surveillance, private investigator
surveillance, and videotaping by an employer are
legitimate and not FMLA violations.
– Facebook postings and other social media can be
valuable and compelling evidence regarding an
employee’s activities while on FMLA.
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What did we learn?
• FMLA was developed to protect the rights of
employees and provide them with adequate
leave when needed.
• The rights of employers to be protected from
FMLA abuse and misuse are also important,
and are being addressed.
• Co-workers also have the right to report
suspicions of FMLA abuse.
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What did we learn?
• It is extremely valuable to have a formal
FMLA abuse policy that not only addresses
falsification issues but also identifies and
prohibits the most egregious and frequent
FMLA abuses.
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Questions, Comments, Concerns?
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