- A worker who took intermittent Family and Medical Leave Act (FMLA) leave but who, according to his own social media post, spent that time at a professional football game was not unlawfully fired by his employer, a federal district court has ruled (Pizarro v. International Paper Company, No. 19-5081 (D. N.J., March 3, 2020).
- Michael Pizarro, an individual with diabetes, worked as a machine operator for International Paper Company in New Jersey. He used intermittent FMLA for issues related to his impairment but was eventually was fired after a supervisor saw him post on Facebook that he was in Dallas attending a Cowboys-Eagles football game when he had called out, citing a need for FMLA leave. Pizarro sued, claiming the employer interfered with his FMLA rights and retaliated against him for exercising those rights.
- The court granted summary judgment for the employer, rejecting Pizzaro’s argument that the close temporal proximity between his leave and his termination showed retaliation, pointing out that Pizarro was first approved for FMLA leave by the company 17 years earlier and that it had granted his requests with no problem until his termination. The court also noted that an employer’s "honest belief" that its employee misused FMLA leave can defeat a retaliation claim.
FMLA leave and vacations aren’t mutually exclusive, experts have said, but there are limits. A California trial court ruled that Union Pacific Railroad was justified in letting go an employee who took FMLA leave and then appeared in a co-worker's Facebook live video of a fishing trip, for example.
Intermittent leave, in particular, can lend itself to abuse, experts say. Chicago, for example, concluded that three workers had abused their right to intermittent leave when they used it to take a cruise together that they had booked nearly a year in advance.
Employers can investigate suspected FMLA abuse and take disciplinary measures, but experts advise against starting with a "presumption of wrongdoing." A Massachusetts jury awarded $2 million to an employee accused of FMLA abuses because the employer didn't investigate in good faith.
Attorney Jeff Nowak, a shareholder at Littler Mendelson P.C., previously told HR Dive he recommends maintaining and enforcing call-in procedures and thorough documentation.