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.
Every week there are new stories in the news about teenagers who have either run away or been kidnapped. When parents see these tragedies play out through media coverage, there’s usually one common thread running through their minds, “This could not happen to my child.” Despite statistics on the demographics most often affected by missing or runaway teens, no family is immune. Parents of a missing child or teen will most certainly have never found themselves in these frightful circumstances before and be at a loss for how to proceed. In addition to filing a report with police, the parents might also consider hiring a private investigator to conduct an independent, concurrent investigation. Finding missing teens is not always the speciality of an individual law enforcement agency, which means your child could fall through the cracks. Finding missing teens is not easy, especially when they do not want to be found. That’s why many families rely on the independent tenacity of private investigators to find their missing teens. Should you hire a private investigator to locate your missing or runaway child?
An Overwhelming Task
The Office of Justice Programs estimates the first 48 hours after your child goes missing are the most crucial in the timeline of any investigation. During these moments, your instinct might be to go find the child yourself or help conduct searches; however, as a parent or guardian of a missing child, your information is the most crucial. A 1982 congressional mandate requires law enforcement to immediately take a report following the disappearance of a child under the age of 18. However, recent reports estimate the excess of some 800,000 missing persons cases reported every year, 85-90% of those cases are individuals under the age of 18. What this statistic tells us is law enforcement, in most parts of the country, are overwhelmed by a caseload (with some departments averaging over 40 cases per investigator) leaving your missing child as a file amidst a stack of equally devastating missing child cases. As law enforcement agencies across the country remain stretched, missing child cases—especially ones where the child appears to have run away—are not always the first priority, as investigators attempt to perform a triage regarding which case requires their attention the most. Private investigators only average between three and four cases at any given time, meaning your child’s case will be at the top of their list of priorities. During the crucial FIRST 48 hours, having a private investigator treat your case as a priority can be the difference between acquiring invaluable information and losing a lead.
Constitutional Red Tape
One of the glowing advantages of hiring a private investigator to find your missing child or teen is the fact PIs possess far more autonomy than the average law enforcement officer or investigator. For instance, when a suspect has been identified, law enforcement often must secure a warrant for them to be tracked as the investigation unfolds. Paperwork and bureaucracy within the chain of command can cause the wheels of justice to turn slowly in regards to local or state law enforcement. Not only are PI’s not required to file this sort of paperwork, but they can also do so without the supervision of a governing law enforcement administration, so the case progression is not stalled for lack of warrant or administration approval.
The Binds of Jurisdiction
With a private investigator conducting an independent, concurrent investigation, there will never be any issues of jurisdiction when pursuing leads. Say your family lives in Indiana, but while on an out-of-state family vacation, your child goes missing in a crowd. As missing and abducted children across state or even international borders, local law enforcement exponentially lose power to follow leads maybe illuminating the child’s whereabouts. It is also not uncommon for two or more law enforcement agencies to enter a tug of war when it comes to who has jurisdiction over a particular case based on the specific circumstances. This can lead to the loss of leads or time as agencies hash out the details. Private investigators are never bound by jurisdictional bureaucracy. They can travel between states following the trail of a missing child, all without having to file any paperwork or obtain special permissions from superiors.
While law enforcement may have a wealth of experience and exclusive tools at their disposal, it’s important to remember that these civil servants are often overwhelmed with an immense case-load and can only do so much when it comes to the constitutional and jurisdictional boundaries they cannot cross. Private investigators have the expertise and similar tools of law enforcement, while also having the time to treat your case as a top priority.
Carie McMichael is the Communications and Media Specialist for Lauth Investigations International, writing about investigative topics such as missing persons and corporate investigations. For more information on missing persons topics, please visit our website.
The owner of the dog in question, referred to as the Subject, was living on a few acres of property surrounded by a decorative fence the Victim of the dog bite alleges was easy for the dog to have jumped over. The Victim in the case reported she often walked past the Subject’s property early in the morning, approximately six or seven times prior, where she often witnessed the dogs “going crazy in the yard,” but never observed one loose from the confines of the property fence.
On the day of the incident, the Victim observed the gate to the property closed and one of the Subject’s two dogs residing inside the fence, but not the other. As she continued down the road, the unaccounted-for dog caught her by surprise, biting her on her backside and her arm. The scuffle was soon broken up by Witness A, who approached in their vehicle and honked their horn, scaring off the attacking dog. Witness A then drove the Victim to her residence, where she called 911 and was escorted to the hospital by an ambulance.
Lauth Investigations International Inc. was retained by Client X to contact neighbors of the Subject and witnesses to the incident to uncover if the dogs had ever escaped the fence before. Lauth’s investigators began their investigation by taking note of the lay of the land—both at the scene of the attack and the nearby geography—noting the Victim’s property was only a little over a mile up the road from the Subject’s property, or a twenty-two minute walk.
Lauth contacted the local sheriff’s department to obtain the victim’s police report regarding the incident, and also obtained an additional report for a similar dog bite incident, naming another possible resident of Subject’s house.
Photos were taken by Lauth Investigators of the Subject’s fence around the property. The Investigator did not observe any reasonable means for a dog to escape the fence. The next day, the investigator met with the Subject, the owner of the dog. The Subject insisted her dogs, who have since been euthanized, were friendly animals with zero history of violence and no propensities for aggression.
The Investigator later spoke to the neighbor, Witness A, who saw the attack in-progress. He recalled the dog was “snarling and growling,” and could only report he saw the dog approach from the right side of the road, which is the side on which the Subject’s property is located. He had never seen the dogs before, as he did not travel along that road often.
Witness B lives two houses away from the Subject and told the Investigator, contrary to the Subject’s statements, the dogs were very aggressive, with the propensity for excessive barking, unfriendliness, and a habit of charging the fence from the residence when cars or pedestrians would pass. She also advised it was not uncommon for at least one dog to be loose. When a vehicle left the Subject’s property, the gate to the fence would open, and at least one dog would often follow the vehicle. The gate would close behind the vehicle, leaving the dog loose from the property. At least six other witnesses, including the victim’s daughter and a mail carrier, reported aggressive behavior from the dogs in recent memory. The Investigator did speak to one witness who helped raise both dogs from birth and had never witnessed any violent behavior from the dogs.
With witnesses to both the attack and aggressive behavior from the dogs, it was determined the Subject was negligent in keeping the dogs penned, despite numerous complaints for neighbors and passersby. Lauth Investigations has documented their testimony for litigative purposes, if any, in the future.