Viewpoint: FMLA Surveillance of Employees Requires a Good Reason

Employers need an objective basis for believing an employee is abusing FMLA leave

By Jeff Nowak © Franczek Radelet P.C. March 7, 2018

The federal district court in Idaho was troubled that surveilling an employee—in this case, John Walker, a longtime police officer with the Pocatello police department—without any basis might "chill" an employee from taking Family and Medical Leave Act (FMLA) leave. The court said in its Jan. 31, 2018 ruling:

Walker contends that the Police Department engaged in actions which had the effect of deterring the exercise of FMLA rights. Specifically, when defendants had doubt about the validity of Walker's medical condition, they did not simply request another medical opinion as contemplated by the regulations. Instead, they tracked Walker, and surveilled his activities on his own property by setting up a police surveillance camera on his neighbor's fields.  . . . There is a genuine issue as to whether the Police Department's invasive surveillance of Walker's private activities would "chill" his use of FMLA, and whether they were negative consequences of Walker taking FMLA leave. (Walker v. City of Pocatello)

Often enough, employers ask whether they have the right to conduct surveillance on an employee they suspect is abusing FMLA leave. Courts generally support an employer's right to do so where there is a clear concern that the employee is abusing FMLA leave, as the U.S. Court of Appeals for the 7th Circuit held in a 2012 ruling.

Put Policies in Place

Where FMLA abuse is particularly rampant, the use of surveillance can be effective to ensure employees are being honest with their use of leave. Before heading down this path, however, it is critical that surveillance is consistent with your personnel policies (courts typically want to know that employees have been on notice of the possibility of surveillance) and any applicable collective bargaining agreements (CBA). Where a CBA is involved, surveillance also may need to be bargained with the union.

Also, maintain a policy regarding the fraudulent use of FMLA leave. Not currently in your policy? Have your employment attorney update your policy now, as this type of provision is a gem to hang your hat on when you have to defend an FMLA claim involving a (former) employee suspected of misusing FMLA leave.

Are Second Opinions Necessary?

Must the employer seek a second opinion before surveilling an employee? Not necessarily, and I think in Walker the court overstepped by insisting that the police department should have done so here. Before pulling the trigger on surveillance, however, it is critical that the employer have an objective basis for believing that an employee is abusing a leave of absence, for instance:

  • Inconsistent reasons for leave.
  • Significant changes in frequency or duration of the absences, such that leave appears to be suspicious.
  • Reliable information you receive from the employee's co-workers about his misuse of leave.
  • Suspicious patterns of absences over a short or longer period of time.

Have an Objective Basis for Seeking Surveillance

In Walker's situation, it appears as though the police department fell woefully short of establishing an objective basis for seeking surveillance. Because there was no honest belief that Walker was misusing his FMLA leave, there was no objective basis for conducting surveillance. Consequently, a court—and therefore, a jury—is left to believe that the surveillance (and the notes to file) are attempts to chill an employee's use of FMLA leave. As this particular court points out, that may very well be an FMLA violation.

 

Jeff Nowak is a Chicago-based partner and co-chair of the labor and employment practice at Franczek Radelet P.C. and author of the FMLA Insights blog, where a longer version of this article originally appeared. © 2018 Franczek Radelet P.C. All rights reserved. Republished with permission.

 

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