The Family Medical Legal Act of 1993 serves to protect an employee’s job in the case of family or personal illness or emergency. Specifically, it ensures long term, full time employees “12 work weeks of unpaid leave during any 12-month period to attend to the serious health condition of the employee, parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child.” Unfortunately, it is often used for anything but.
FMLA fraud is common. Employees have been known to take FMLA allotted days to go fishing, finish a long vacation after running out of vacation days, and even serve jail time. However, successfully winning a case of FMLA fraud in district court is not as easy as you may think. Proving that an employee’s “out of work” activity conflicts with their FMLA testimony is hard, and often requires a lot of documented research.
Take the example of an employee who was seen drinking and dancing during her sick leave for a bad back, but who won her case against her employer. Or the woman who successfully used her sick leave to take her mother to DisneyWorld. Cases that seem to be open and shut end up being far from it, and it is often due to a lack of information on the extent of the perceived illness, injury, or handicap, or a lack of information on the perceived act of fraud.
If you think you are a victim of FMLA fraud, and that you have an employee who is abusing the system, here are three things you should do before you terminate them to avoid frustrating legal proceedings and possibly losing a winning case.
- Hire a Private Investigator- OK, you knew we were going to say that. But in all sincerity, trying to win an FMLA fraud case without the use of a private investigator is essentially shooting yourself in the foot. In the case of FMLA fraud, a well researched case is the difference between winning and losing, because you will need to have details on what your employee is doing that you cannot get on your own. Private investigators can help you contextualize your employees medical situation, look into any plans they had for vacations or trips, help you identify any incriminating evidence, and most importantly, keep you in line with the law throughout the process. If you think that an employee is lying about their FMLA needs, they probably are. Your issue lies in proving that to a judge.
- Build a strong argument- As stated above, being out dancing might not necessarily mean that you don’t have a back problem preventing you from work- at least, not to a court judge. If the employer in that specific case did the work of consulting a medical professional and building a stronger argument around their assertion that “dancing means you can work”, they would have probably won their case. They lost because they fired their employee based on assumptions instead of facts. If you are going to fight someone on FMLA leave, make absolutely sure that you are building an argument that will stand up in court. Talk to professionals, research your assumptions (no matter how obvious and self-evident they might seem to you), and don’t terminate the employee until you are absolutely sure that you could back up your decision in front of a judge.
- Weigh the pros and cons- Unfortunately, the potential benefit of terminating an employee who abused FMLA might not outweigh the costs of court proceedings, research, and the risk of losing. Of course, you do not want to continue to employ someone who blatantly lies and abuses your company and your trust. But in the case of gray areas, it might be best for your company to let it slide and assume the best. As long as the abuse is not recurring and does not become a habit, giving your employee the benefit of the doubt in minor cases of potential fraud might be best for company morale, and for your checkbook. It simply isn’t always worth the fight, despite the injustice of it.
Winning your case comes down to one thing: being prepared. Take preparation seriously, know the facts, and you have a good chance at getting justice for your company.