AUSTIN, Texas — It's usually front-line managers who get a bad reputation for causing Family and Medical Leave Act (FMLA) violations — and for good reason. Still, HR can be just as guilty, despite all the training and experience.

You've asked your managers to keep their emotions in check when it comes to leave, but there are several recent cases that illustrate the importance of heeding your own advice, experts told attendees at the 2018 Disability Management Employer Coalition's Annual Conference Aug. 7.

In DaPrato v. MA Water Resources Authority (Mass. Superior Court, March 22, 2018), which resulted in a $2 million jury verdict, HR suspected that an employee was abusing FMLA leave — and the department's employees were personally offended.

HR was snarky and hostile, which is "never a good match," said Marjory Robertson, AVP and senior counsel for Sun Life Financial Services Company Inc. Adopting an attitude in writing is even more dangerous.

Already offended by tone the employee was taking with HR, things went off the rails when he submitted another leave request. According to Robertson, one HR rep emailed another saying, "Is he serious?" To that, the other rep replied, "OMG."

HR then conducted an investigation into whether he was abusing leave and, perhaps unsurprisingly, a court ultimately determined that the department went into the investigation with a "presumption of wrongdoing." They were focused on the facts that supported their decision, the court determined, and didn't investigate in good faith.

"You really have to go into this with an open mind," Robertson said. Don't go in with an attitude, she said, and be sure to interview the employee and get their side of the story. And, of course, avoid snarky comments in emails. Robertson said she recognizes that HR and management employees get familiar with each other, but they must remember that even instant messages are discoverable.

Additionally, if you discover that there is an unfortunate email or chat message out there, perhaps that person shouldn’t be involved in the investigation, Robertson suggested.

Megan Holstein, SVP of absence and claims management for FINEOS agreed, adding that if you’re part of a small HR department and folks there are personally upset by the situation, "it's a good time to get a third-party investigator."

Another case, Browett v. City of Reno (D. Nev., May 8, 2018), resulted in a $1.38 million jury verdict for a Reno police officer and serves as a reminder that HR must keep a cool head and focus on objective facts.

In that case, the officer argued with HR about his leave — and eventually got HR to agree to run his leave in the way he wanted. A month later, Robertson said, he was passed over for a promotion and told that it was because of the "inflammatory" emails he sent to HR; "It wasn’t the fight, but the way you went about it," he was told.

The court, however, had noted that there was no profanity or insulting language in his communications with HR. "They can at worst be described as stubborn," it said. "Although the tone is one of frustration and protest, that is of course the nature of activity in opposition to perceived rights violations."

Often, managers and HR don't like the way employees talk back to them, Robertson said, but "I am not a big fan of warnings for insubordination." Instead, focus on objective facts, she said, because "one person's insubordination is another's standing up for their legal rights."