Courts have repeatedly affirmed employers’ right to investigate the perceived misuse or abuse by employees of leave under the Family and Medical Leave Act (“FMLA”).  After all, while eligible employees have the right to take FMLA leave, employers have the right to ensure that FMLA leave is used only for a proper purpose.

Of course, an investigation may lead to the conclusion that an employee has engaged in FMLA fraud, and thus may result in discipline – even termination – of the employee.  If the employee subsequently pursues a legal claim against the employer, the investigation itself will no doubt be subject to scrutiny, including for purposes of determining whether the employer acted on an “honest belief” that the employee had misused FMLA leave.

Accordingly, here are some tips for conducting an investigation into perceived FMLA fraud:

• Have a solid basis for initiating an investigation. FMLA investigations should not be undertaken simply because an employee is using, or even exhausting, his or her FMLA leave.  Rather, an investigation is appropriate only if there is a reasonable basis for believing an employee is somehow misusing FMLA leave, such as lying about having a serious health condition or using leave for a purpose other than the purpose for which leave was certified (e.g., to cover absences for a planned trip when a vacation request is denied).  To avoid a perception that the investigation occurred simply to harass the employee and/or discourage the use of FMLA leave, an investigation should occur only when there is evidence the employee is misusing the FMLA.
• Conduct an investigation when any type of fraudulent use of leave is suspected, not just the fraudulent use of FMLA leave. An employer who investigates perceived abuse of FMLA leave, but does not investigate perceived abuse of other types of leave (such as abuse of leave for a workers compensation injury), is vulnerable to an FMLA discrimination or retaliation claim, i.e., a claim that the investigation occurred only because of the FMLA nature of the leave.
• Ensure that a proper investigation is conducted and documented. Courts do not typically require an employer’s investigation be exhaustive in nature.  However, reasonable investigation steps should occur, such as reviewing relevant documentation and interviewing identified witnesses.  Conclusions should be based on articulable facts, and the investigation steps and findings should be documented.
• Avoid a “tainted” investigation. Having a trained Human Resources representative or other management personnel conduct the investigation will go a long way towards establishing the reasonableness of an investigation.  By contrast, allowing a manager who has been vocal about the challenges created by the employee’s use of FMLA leave to handle the investigation may prompt questions about the thoroughness and/or objectivity of the investigation.  Similarly, co-workers who have expressed frustration with the employee’s absences should not be the only source of “evidence” concerning the misuse of leave.
• Avoid making assumptions about the employee’s ability to work. Employers are understandably frustrated when an employee fails to show up for work, claims the absence was for the medical reason on the FMLA certification, and then is seen during work hours engaging in activity that seems incompatible with the employee’s asserted inability to work (e.g., drinking at a bar, building a front porch, working out at the gym, shopping).  But courts disapprove of assumptions along these lines, noting that an inability to perform certain job functions does not necessarily mean the employee cannot engage in other activities.  Indeed, in some situations, employers may not only need to dig into the details, but may even want to consider obtaining a medical provider’s opinion before reaching a conclusion on whether the employee’s conduct is inconsistent with the need for FMLA leave.
• Give the employee the opportunity to explain. Although an employer’s belief that an employee engaged in FMLA fraud does not necessarily need to be correct, it does need to be honestly held.  Establishing an “honest belief” of FMLA fraud can be difficult if the employer fails to give the employee a chance to explain the situation, even when the evidence – such as surveillance video – seems damning.  Accordingly, an investigation should almost always include questioning the employee and giving the employee an opportunity to explain why the evidence is not what it appears to be.
• Adopt policies that will provide the basis for discipline/termination. When making a decision to discipline or terminate, it is helpful to point to a specific policy that the employee violated.  Among the policies to consider:  a prohibition on the submission of false information in support of a request for leave; a prohibition on the misuse or abuse of FMLA leave; a requirement that employees notify the employer if the amount of FMLA leave turns out to be less than anticipated; a prohibition on working a second job while on any type of leave.
• Obtain legal advice. Proceeding with termination of an employee for FMLA fraud – at least in the absence of an admission by the employee – presents the clear risk of an FMLA interference and/or retaliation claim.  Getting legal advice ahead of time is never a bad idea.

By taking steps to conduct an appropriate investigation before taking action based on perceived FMLA fraud, employers greatly increase their chances of defeating an FMLA claim.

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