The Employer's Legal Resource: Combatting FMLA Abuse with Video Surveillance
You've seen it before - suspicious use of intermittent leave under the Family and Medical Leave Act ("FMLA") - Mondays and Fridays, around the holidays, and after a request for vacation leave is denied. FMLA abuse happens in the workplace, and employers struggle to find tools to address the problem. In certain instances, lawful surveillance of employees may be a tactic to stop FMLA abuse. This approach has been used by employers to check up on employees using FMLA leave, and there is a growing line of cases supporting employers' right to do so. On March 16, 2015, the Western District of Michigan released a decision in Dandridge v. North America Fuel Systems Remanufacturing, LLC, illustrating the importance of conducting a comprehensive investigation before terminating an employee for FMLA abuse.
Dandridge began working for North America Fuel Systems Remanufacturing, LLC, in 2005, and purchased a commercial property with a coworker three years later. In April 2011, he requested and was provided intermittent FMLA leave for migraines. On May 23, 2011, he called in one hour before his scheduled 2:30 p.m. shift to report that he was taking FMLA leave because of a migraine. His employer was suspicious and hired a private investigator to set up video surveillance in front of the commercial property that he owned with his coworker. The surveillance footage showed Dandridge and his coworker entering and exiting the property multiple times. Three days later, Dandridge was terminated. He subsequently filed claims for FMLA interference and retaliation against his employer.
The employer filed a motion for summary judgment, arguing it should win because it had an "honest belief" that Dandridge was abusing his FMLA leave. The court denied the employer's motion, reasoning that the employer's limited and singularly-focused nature of its investigation (the video) foreclosed it from using the honest belief defense.
As this case demonstrates, video surveillance will not always be enough to win your case. Employers are still at risk for litigation related to FMLA interference and retaliation, and thoughtful investigations are necessary to defend termination decisions based on the "honest belief" rule. While not necessarily warranted in all cases, employers should consider the following strategies before terminating employees based upon video surveillance evidence:
- Analyze whether the employee's activity on the videotape is inconsistent with the employee's alleged limitations (e.g., could Dandridge have done the activity on the video within the FMLA restrictions);
- Consult with an outside medical professional to review the videotape and provide an opinion concerning the employee's use of FMLA leave;
- Meet with the employee and ask about the employee's activity on the day in question;
- Show the employee the videotape and allow the employee an opportunity to provide an explanation.
By Destyn D. Stallings, firstname.lastname@example.org