Using Technology to Detect, Confront, and Prevent Leave Abuse

By David S. Mohl, JD

Principal
Jackson Lewis P.C.

Protections under the Family and Medical Leave Act (FMLA) do not extend to an employee who fraudulently obtains FMLA leave.¹ Nor does the FMLA provide an employee with a greater right to reinstatement than they would have had if they had been continuously working.² An employee, therefore, is not shielded from misconduct by virtue of taking FMLA leave. This means an employee on FMLA leave can be terminated for acting dishonestly if the employee’s actions would have resulted in termination had the employee been working.

While this can provide employers with some welcome relief, given the FMLA’s strong antiretaliation protection, many companies struggle with how to investigate suspected leave fraud and abuse. In fact, employers identify trying to control employee FMLA abuse as a top organizational challenge.³

Many employers are not aware of the tools available to them or how to effectively use them to investigate and confront employees who fraudulently obtain or use FMLA leave. Use of social media and video surveillance, when coupled with what is known as the “honest belief rule,” can be effective in investigating and addressing situations in which employees are less than truthful when taking leave.

An FMLA retaliation claim requires discriminatory intent by an employer.⁴ Courts have routinely applied the “honest belief rule” to show a lack of discriminatory intent to defeat an FMLA retaliation claim. The honest belief rule provides that an employer’s honest suspicion that an employee was not using the leave for its intended purposes is enough to defeat an FMLA retaliation claim. This is because the employer’s honest belief that the employee engaged in misconduct demonstrates that the employer lacked the required discriminatory intent.⁵ The honest belief rule does not even require that the employer’s belief be correct; it just requires that the belief be honest.⁶

This is where advancements in technology can be of value to employers. Employees often share a great deal of information through their social media accounts that they may not otherwise reveal in the workplace. In an increasing number of cases, social media postings provide a basis for a suspicion of fraudulent FMLA leave use that ultimately results in an employee’s termination.

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