Over the past weekend, many Americans participated in St. Patrick’s Day festivities in their community. With the 17th of March falling on a Sunday this year, many service industry establishments held events and promotions all weekend, which for many employed individuals meant three days of imbibing and socializing. After all of the excitement and green beer, it’s no wonder that March 18th is one of the most common days for employees to call off in the entire calendar. Consequently, there is a spike in employees who are suddenly experiencing “flu-like” symptoms, including sweating, headaches, and stomach upset—employees who are calling in sick who could very well just be hung over. This is what employee malingering looks like, and it can have disastrous impact on businesses and corporations throughout the country.
Employee malingering can be a difficult subject, as it usually falls under the umbrella of other sensitive topics, such as FMLA abuse. Some companies do not feel comfortable investigating possible abuses of FMLA, and do not probe into suspicions of malingering. Often, however, sometimes it’s just a matter of an employee who has a chronic case of the “sniffles.” Malingering employees have a pattern of faking sick in order to get out of working. This can be for a single day Malingerers cost companies across the country billions of dollars a year, with exponential costs of investigation and possible litigation, laying heavy blows to a company’s profits.
Malingering is preventable, but only if an employer provides consistent and accommodating policies concerning their employees’ physical and mental health needs. These enforced policies will leave no single employee feeling victimized by a vindictive supervisor or employer. If your company requires employees to document visits to the doctor, then there should be no exceptions in to that rule, barring extenuating circumstances. After all, asking for documentation is one of the best ways to prevent malingering, because employees who would simply rather stay home will be reluctant to spend their day in the doctor’s office as an alternative. This consistent enforcement of company standards also adds another veneer of integrity that becomes valuable in later stages of any investigation. It’s also important for an employer to remember that there must always be room to accommodate an employee’s needs. Unreasonable, aggressive policies with regards to sickness can make a work environment unhealthy, both in the physical and metaphysical sense. Employees who don’t feel free to take a sick day when they have an actual illness can spread it to the entire workforce. Employees who also feel as though their needs are not being accommodated can be resentful and their work performance may suffer as a result.
Just as the case with FMLA abuse, in order to have an objective investigation into any honest suspicions of malingering, it’s crucial to retain the services of a external, third-party, private investigator. Investigators appointed from within a company to investigate suspicions of malingering may know the ins and outs of a business intimately, but are objectively useless when it comes to investigate one of their own. For starters, if this employee is well-known to much of the workforce, they will be easily spotted when conducting any surveillance on an employee who is suspected of malingering. They will be recognized and the employee will immediately be on their guard. If an internal investigator is not licensed by the state, they may not know the legality of their methods and it can taint the investigation going forward. Private investigators—while having more autonomy than law enforcement—still must operate within state and federal law. Private investigators are trained to gather and document evidence and interview witnesses to corroborate their observations of a malingering employee’s movements. Any business owner knows that investigating employees for any reason has the potential to lead to litigation, and during those proceedings, an objective, third-party investigator is the one with the most integrity during deposition or testimony, as they do not have a stake in the outcome of the case.
If you suspect an employee of yours is malingering, then lay the groundwork for a solid investigation by retaining the services of a qualified licensed investigators. When it comes to taking the steps to investigate employee malingering, an employer must begin with what’s called “honest suspicion,” which is pretty self-explanatory. When an employer investigates a malingerer with honest suspicions, the decision to hire an external investigator to do so continues the transparent narrative in which the employer acts in the best interest of the company. Hiring private investigators to maintain objectivity not only make for a quality investigation, but also foster a culture of integrity and mutual respect within any company.
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.
