- An employer only needs to have an "honest suspicion" that its employee misused her leave under the Family and Medical Leave Act to defeat an employee's right to reinstatement, an Illinois federal trial court has ruled in granting Yelp's motion to dismiss (Smith v. Yelp, Inc., No. 20-CV-1166 (N.D. Ill. March 30, 2021)).
- The plaintiff was denied time off to take a trip to Thailand. A few months later, she was diagnosed with sciatica and a herniated disc in her back, affecting her ability to sit. Yelp approved her FMLA leave. While on leave, the plaintiff took a trip to Thailand that was discovered by her coworkers, who reported the trip to management. The plaintiff texted a colleague that she wanted to "punch those coworkers." Yelp management received the texts and fired the plaintiff for dishonesty regarding her medical leave and for violating Yelp's anti-violence policy. The plaintiff sued Yelp for FMLA interference and retaliation.
- The court granted Yelp's request to dismiss the lawsuit. The district court held that an employer's "honest suspicion” that the employee isn't using medical leave for its intended purpose is enough to defeat the employee's rights under the FMLA, noting that an employee is only entitled to reinstatement of the job if the worker takes leave for its intended purpose. Even though Smith happened to be on FMLA leave when she committed a fireable offense — the violation of the anti-violence policy — that alone doesn't shield her from termination, the court said. Even if the employer "could have conducted a more thorough investigation,” it's not required to do so. The employer also doesn't need to prove the employee actually misued leave, the court noted; "Genuine suspicion is sufficient to preclude the employee's FMLA claims."
Sometimes employees offer false reasons for taking FMLA leave or engage in activities during such leave that seems to be inconsistent with the need for time away from work. For instance, while out on FMLA leave, a Union Pacific employee appeared in a co-worker's Facebook live video of a fishing trip and was subsequently fired for FMLA misuse. The court ruled that the employer was justified in firing the worker.
However, experts have said that FMLA leave and vacations aren't mutually exclusive.
Employers are allowed to investigate suspected FMLA abuse and take disciplinary measures, but they shouldn't start with a presumption of wrongdoing. Because it found that the employer didn't investigate in good faith, one Massachusetts jury awarded an employee $2 million over questions about leave.
Investigation can include surveillance. Some courts have upheld an employer's use of surveillance. A Delaware federal trial court ruled earlier this year that a chemicals company use of video surveillance to prove an employee's behavior was inconsistent with her stated need for disability leave did not violate the FMLA.