I’ll admit it; I’m a bit of an FMLA geek. So when I first read about “honest suspicion” I was slightly giddy. When I started managing FMLA claims, in the 90’s, FMLA was still quite new. Employers at that time were simply handing out approval letters for fear of wrongfully denying a claim. At that time, court rulings were strongly in favor of the employee. This resulted in excessive FMLA abuse that left employers understaffed, and with poor employee morale because co-workers were fully aware that they were working overtime due to Jane’s back pain that coincidently flared up on the best beach days of the summer.
It’s taken a very long time, but the culture is finally changing, and the honest suspicion rule is providing employers with much-needed support.
Employers who have honest suspicion of FMLA abuse can question other employees about any conversations they may have overheard, or any instances where they might be aware of an employee abusing the FMLA. Many employers have begun to incur the extra expense of hiring private investigators to justify that their suspicions of abuse are constituted. The objective would be to send the message that FMLA fraud will not be tolerated, which will assumedly allow the employer to regain this expense with productive working hours. I probably don’t have to give you hints about whom you might consider is committing FMLA fraud, but I of course will anyway.
In my opinion the most obvious is the psychic employee who can foresee the days in the future that they will be incapacitated and kindly let their employer know they’ll be taking FMLA for back pain or migraines next week. Tillman vs. Ohio Bell Telephone is a good example of how the employer can win on this one. Ohio Bell hired a private investigator to confirm their suspicions that Tillman may be pulling their leg. The investigator was able to record Tillman in his garage, bending, twisting and lifting: Movements not consistent with debilitating back pain.
In Hamm vs. Nestle, Hamm crossed the line when he requested FMLA for a day that was previously denied as a PTO request due to excessive absences. The supervisor questioned Hamm’s colleagues about whether or not they had overheard him discussing FMLA days. Frustrated co-workers advised that they had heard Hamm discussing breakfasts and golf outings. Nestle went on to question Hamm about their suspicions and he was ultimately terminated for abusing the FMLA: A win for Nestle in the courts.
The lists are getting longer where employers have walked away justified in their decisions to terminate employees who have taken advantage of their FMLA privileges. That said, as an employer you must do your due diligence and document every conversation properly, and most importantly bring your findings to your employee, and provide them with an opportunity to explain.
Remember the employee must be afforded the opportunity to produce evidence to the contrary of your allegations. Without completing that final step, all your efforts and dollars are squandered.
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