The Family and Medical Leave Act is supposed to give employees the ability to attend to personal or family matters like recovering from surgery or caring for an infirm family member without the fear of losing their job. However, the same legislation meant to protect employees can also be exploited by employee misconduct. Regardless of whether or not an employee is abusing FMLA, the employer’s burden of proof is dependent on establishing the quality of FMLA abuse investigations into the claim.
Because of the complex, contentious nature of an FMLA abuse investigations, some employers are shy or negligent about performing due-diligence. It’s true that hiring a professional to conduct a comprehensive FMLA abuse investigation can be a very expensive endeavor that many employers would rather skip and rely on their own investigating to determine whether or not there is cause to terminate the employee. However, this is incredibly short-sighted, and can result in very negative consequences for the employer.
For example, in one scenario, an employee submitted a request for FMLA leave in order to address their inability to meet hourly fulfillment quotas because of their bad knee. Choosing to skip the professional FMLA abuse investigation, the employer got online and found the employee’s social media pages—a source commonly used in FMLA abuse investigations. The employer observed the employee dancing in a video posted to their profile. The employer closes the case, determining that the employee’s FMLA claim was fraudulent. After all, if they’re able to dance, they should be able to make fulfillment requirements.
However, imagine the shock the employer received when the court upheld the employee’s FMLA claim in subsequent court action when the judge ruled that the employer was negligent in comprehensively investigating the claim. The employer was not able to provide proof that they had conducted a field investigation, nor had they consulted a medical expert regarding the employee’s injuries. Thus, the court ruled in the employee’s favor, and was awarded damages. This is why it’s always imperative to hire a professional for FMLA abuse investigations in order to ensure that no stone is left unturned and the employer can remain above reproach in any subsequent legal action.
Hiring a private investigator for FMLA abuse investigations also means you get the benefit of due-diligence in field investigations. In cases where the employee is suspected of faking an injury, you’ll need an investigator who knows how to hide in plain sight. Private investigators can conduct field surveillance in which they locate the employee at home or in the field and begin documenting their movements for the client. These surveillance operations can answer vital questions pertaining to the employee’s level of mobility, how much assistance they require with basic tasks, and whether or not they are behaving reasonably within the parameters of their alleged injury. Private investigators can take video, still shots, and write case narratives on what they observed during the field surveillance and compile this into a report for the employer. In another scenario, an employee who has submitted a request for FMLA leave claiming to need time to recover from surgery on his back. However, when the private investigator stakes out the home of the employee, they observe the employee carrying items to and from his pickup truck—items like lumber, power tools, and paint cans—too heavy to lift for someone who would be recovering from back surgery. The private investigator documents this with photographs and includes his observations in his final report.
Unlike employers, private investigators have access to a wealth of information through their licensure through the state. Employers are restricted to only the information in the employee’s personnel file and their application for hire. Using only a few key pieces of information, private investigators can have a subject’s entire history at their fingertips, including criminal history, job history, and address history. Private investigators also know how to comb local databases for any information pertaining to the subject. In one case, an employee claimed to need FMLA leave in order to care for his sick mother—approximately six weeks. The employer became suspicious when the employee never arrived to pick up the last check before the start of his leave. The employer hired a private investigator for an FMLA abuse investigation. The private investigator located the employee’s mother’s address, and after staking out the home for a period of days, determined that the employee was not assisting the mother in the home as they had claimed. Instead, after checking local jails, the private investigator was able to determine that a subject with the same name and birthday as they employee was serving a 6-week jail sentence and using FMLA to conceal this fact.
No matter what the specific circumstances of an FMLA abuse investigation, a private investigator is an ideal professional to carry out the operation. They are adept at hiding in plain sight and concealing their efforts to document fraudulent behavior by employees who have asserted their need for FMLA leave. Protect your business from this employee misconduct by calling Lauth Investigations International today for a free quote on our FMLA abuse investigation services at 317-951-1100, or visit us online at www.lauthinvestigations.com.
FMLA fraud can devastate a company, but companies should protect the integrity of their investigations to protect themselves.
The Family and Medical Leave Act (FMLA) provides working families balance to their lives when their circumstances take a turn. Whether it’s caring for new life in the household—such as a newborn or a foster child—or to care for an ailing relative, the 1993 act protects employees from being terminated from their jobs when they must take an extended absence for a specific set of reasons. However, abuses of FMLA are extremely common in the American workforce. While suspicions of FMLA abuse should be taken seriously by employers, companies must conduct thorough and unbiased investigations before terminating any employees. Businesses who do not follow protocol can open themselves up to expensive litigation.
In addition to protecting employees from termination during an extended leave, FMLA also requires their various insurance coverage remain in effect. This protection can be guaranteed for up to 12 weeks. According to the Department of Labor:
FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.
FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:
- the birth and care of the newborn child of an employee;
- placement with the employee of a child for adoption or foster care;
- to care for an immediate family member (spouse, child, or parent) with a serious health condition; or
- medical leave when the employee is unable to work because of a serious health condition.
The use of FMLA within these guidelines (with some exceptions) is designed to protect hard-working men and women from losing their jobs when their family suddenly requires their attention. Life can change so fast, and employees can rest easy knowing their jobs will be waiting for them when they are able to return in top-performing condition.
According to Charlie Plumb, an attorney who represents clients in all phases of management, abuse of this protection should be investigated, provided the employer has an “honest suspicion.” He goes on to say, “This honest suspicion standard is really intended to protect the employer against a claim they are interfering against FMLA leave and/or being retaliatory.”
A familiar scenario is one where an employee has been granted leave under FMLA for a serious illness or injury. The employer then happens to see posts from the employee on social media having fun out with friends, exercising, or driving. The employer might think, “If they’re well enough to do these things, they must be well enough to work.” While this might sound like an open and shut case from the employer’s point of view, Allen Smith of The Society of Human Resources Management, provides an example where this philosophy proved problematic:
“Joan Casciari, an attorney with Seyfarth Shaw in Chicago, said she handled a case that involved an employee who was put on FMLA leave for depression. The employer later discovered, through surveillance, she was doing Christmas shopping with her family and having a wonderful time. But her doctor confirmed “retail therapy” was consistent with her condition and the fact she could shop did not mean she did not require FMLA leave.”
Luckily for the employer in this anecdote, they did their due diligence and consulted a medical professional who could corroborate the circumstances of her FMLA qualifications. Some employers are far hastier. When employers do not conduct comprehensive and objective investigations into suspicious FMLA claims, they can open themselves up to lawsuits that can be devastatingly expensive and a public relations nightmare.
Vigilance of adherence to the guidelines of FMLA becomes manageable when Human Resource directors keep an eye out for certain patterns of behavior, such as absence patterns, especially when they coincide with non-work events (holidays or something personal that they may have mentioned in the past). Employers should also be suspicious of absences directly contradicting any medical certification in frequency or duration.
Once an employer has a reasonable suspicion of FMLA abuse, they should most certainly investigate. However, internal investigations into these kinds of abuses can be very messy for Human Resources and upper management. The aforementioned scenario involving “retail therapy” could have been a disaster if the company had not done their due diligence. Some employers are not so diligent.
Another scenario involving a maintenance worker at a nursing home and rehabilitation center panned out much differently. The employee in question noticed his superior was exhibiting a pattern of absence he found suspicious. He began reviewing surveillance footage to compare to his own personal log of her comings and goings in order to prove she was abusing company time. After discovering the independent investigation, the superior served a series of performance adjustments to the employee before terminating him. The termination came after the employee had submitted an FMLA request. The court found the dates of his termination tied in too closely with his request for FMLA, allowing the employee to take the case to trial.
Scenarios like these are why Human Resources and management should 1) be vigilant of FMLA abuse, and 2) conduct a thorough and unbiased investigation in order to ensure the company is protected from litigation. Many companies choose to handle investigations internally in order to minimize the amount of exposure. However, internal investigations spearheaded by current members of staff, will not only disrupt daily operations, but can also have negative effects like the case of the nursing home. The employee conducting his own investigation may have had honest suspicions of his superior’s misconduct, but he was certainly not a unbiased source to investigate.
Private investigators are probative routes often overlooked when a company has an internal investigation. There are many circumstances under which companies do not want to give up control over an internal investigation, and a private investigator is the definition of a third-party. However, the objectivity of a private investigator is the number one reason why companies should consider them as an option. The personal biases of the persons involved in the previous examples caused the investigation to go south. As an independent contractor, a private investigator’s only loyalty is to the truth. They are vital to ensuring an investigation is a transparent expedition for the truth. This goes a long way towards protecting a business from subsequent lawsuits or bad press.
When handling an investigation internally, employers are limited to what surveillance they can attain from their own equipment or social media. Private investigators are licensed to track individuals and photograph their activity in public. Persons who fraudulently claim to be out for injury can be photographed doing tasks directly contradicting their FMLA claim, like yardwork or lifting heavy groceries. In addition to tracking their public movements, private investigators may also conduct undercover operations in order to investigate any frauds. They are invaluable in this regard as they are not known to those within the company. Whether you’re looking for an FMLA weekender or an FMLA moonlighter, if someone has made a fraudulent FMLA claim, a private investigator is the most-equipped professional to prove or disprove the suspicion.