Termination for FMLA Abuse: All It Takes Is An Honest Employer Belief

By Eric B. Meyer

The Family and Medical Leave Act affords eligible employees up to 12 weeks of unpaid leave during any 12-month period because of a serious health condition that makes the employee unable to perform his/her job.

Let’s say that you have an employee who requests FMLA for a medical procedure that will keep him laid up for a while. But, you’re suspicious. So, you hire a PI to follow the employee and record his every movement. You view the videotape and see that the employee is walking, driving, and even shopping. What the hell?!? Naturally, you think the employee is scamming the company so you fire him.

An employer’s “honest belief” is all it takes…

To make out a claim for FMLA interference, a plaintiff must show three elements:

  1. They were eligible to take FMLA leave;
  2. They took leave for the intended purpose of the leave; and
  3. The employer then denied a benefit as a result of that leave.

An employer can defeat an interference claim by showing, among other things, that the employee did not take leave “for the intended purpose.”

Many courts, including this one, which is based on the facts discussed above, have held that when a company believes that an employee is taking FMLA for an unintended purpose, as long as the belief is honest — it doesn’t have to be reasonable — the company may fire the employee without repercussion.

Most recently, a federal court held that the Illinois Department of Corrections (IDOC) did not interfere with an employee’s rights under the FMLA by docking him a day’s pay because it honestly believed that the employee, which the IDOC had already approved for FMLA, was in court on a day that he should have been treating with his physician.

Court “doesn’t sit  as a super-personnel department”

An employer’s “honest belief” — even if horribly erroneous — will withstand judicial scrutiny.

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And I’ll tell you why.

Discrimination statutes allow employers to discharge employees for almost any reason whatsoever (even a mistaken but honest belief) as long as the reason is not illegal discrimination. As the Seventh U.S. Circuit Court of Appeals in Chicago noted (and I’m sure many management-side labor-and-employment-law attorneys have quoted):

[A court does] not sit as a super-personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, the laws barring discrimination do not interfere.”

Therefore, an employer who fires an employee on FMLA leave for a reason that is not motivated by the FMLA-leave request or the time spent on FMLA, has not broken the law.

While it may not always be fair. It’s not illegal.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.


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