Ask The Lawyer, I believe her claim for FMLA was fraudulent and am ready to fire her. Are there any legal hoops I should know about?

WHAT SERIOUS HEALTH CONDITION? WORKER ON LEAVE LOOKS VERY HEALTHY IN FB POSTQUESTION: One of my employees has been out on FMLA leave for several weeks due to an injury to her hip that, she said, made it impossibly painful to work. A couple of days ago, some Facebook posts of this worker came to my attention. In these posts the employee on leave is shown dancing, drinking and skiing at a resort up north. I believe her claim for FMLA was fraudulent and am ready to fire her. Are there any legal hoops I should know about?

ANSWER: There are no particular legal hoops, but if you want to make sure you don’t end up on the losing end of a lawsuit, you should consult with a lawyer and conduct some kind of investigation to verify the accuracy of the FB pictures before you discharge the worker. At a minimum, get her side of the story.

In a case a few years ago, the Sixth Circuit ruled in favor of an employer on facts similar to the ones you describe. There, a worker on FMLA leave for severe and debilitating appeared on FB having fun with friends at a day-long Polish festival. When confronted by her employers, the worker was not able to offer an explanation for the discrepancy between her activities at the festival and her supposed inability to work due to back pain, and her employment was terminated. She later sued, claiming the employer’s actions were a form of interference with her FMLA, and that the employer failed to investigate her claim that she was in pain while she was at the Polish festival and her actions were not inconsistent with her medical condition. One of the issues, not decided by the Sixth Circuit court, was whether an “honest belief” that an employee is committing fraud under the FMLA is enough to protect an employer from an FMLA interference claim if the belief is later found to be mistaken.

In 2013, in another very similar case (the FB post showed a video of the supposedly incapacitated worker dancing), a District Court in Connecticut ruled that the employer had failed to fully investigate whether the dancing was inconsistent with the employee’s medical condition, and found the worker had presented enough evidence for the case to go to trial.

Because there is some fuzziness in the law, you should consult with an attorney on the scope of the investigation you perform before you discharge your ski-loving employee.

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GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
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