The Family and Medical Leave Act (FMLA) provides critical job-protected leave for employees facing serious health conditions or family needs. However, the protections of the FMLA are not absolute, and employees may find themselves without its shield when an employer honestly believes they have engaged in FMLA fraud.

A recent case from the U.S. Court of Appeals for the Sixth Circuit offers a cautionary tale for both employers and employees about the consequences of FMLA fraud and the importance of maintaining integrity in the administration of leave.

Quick Hits

• The U.S. Court of Appeals for the Sixth Circuit has ruled that an employee on FMLA leave may be discharged based on the employer’s honest belief that the employee has lied about the need for such leave.
• The FMLA protects eligible employees from retaliation or interference when taking qualified leave, but it does not insulate employees from discipline for fraudulent or dishonest conduct.
• Employers may investigate suspected FMLA abuse, and, if fraud is substantiated, take appropriate action.

Background

In Porter v. Jackson Township Highway Department, an employee had a manual-labor job using power tools and sledgehammers to dig ditches and dig up pavement. He requested and was granted FMLA leave for a shoulder injury that ostensibly prevented him from doing his job. However, the employer became suspicious of the employee’s activities during the leave period and hired a private investigator to conduct surveillance. The investigator videotaped the employee engaged in physical construction activities at his brother-in-law’s home. The employee appeared to show no struggles with movements such as bending at the waist while using a tape measure and chalk line, lifting, carrying, using both arms as he worked in the yard, and operating a concrete saw, inconsistent with his claimed medical restrictions. The employer discharged the employee for FMLA fraud, and the employee subsequently brought suit, alleging that the termination of employment was in retaliation for his exercising his FMLA rights. Specifically, the employee asserted that his activities constituted light duty consistent with the ten-pound weight restriction imposed by his physician. The federal district court dismissed the employee’s suit, and he appealed to the Sixth Circuit.

What the FMLA Provides

The FMLA entitles an eligible employee to up to twelve weeks of unpaid, job-protected leave for specified family and medical reasons, including to care for the employee’s own serious health condition. The law prohibits employers from interfering with, restraining, or denying the exercise of FMLA rights. It also prohibits employers from retaliating against employees for exercising their FMLA rights. But the FMLA does not insulate employees from all disciplinary action, and employers may discharge an employee for the fraudulent use of leave.

To establish an FMLA retaliation claim, an employee must first demonstrate that: (1) he or she engaged in a protected activity; (2) he or she experienced an adverse employment action; and (3) there was a causal connection between the protected activity and the adverse employment action. If the employee makes this showing, the employer must then establish a legitimate nondiscriminatory reason for the adverse employment action. At that point, the employee must show that the employer’s reason is a pretext for an unlawful action.

The Court’s Decision

The Sixth Circuit upheld the employer’s decision to discharge the employee for FMLA fraud, finding that the employee had failed to establish that the employer’s stated reason—its honest belief in the employee’s fraud—was pretextual. In so holding, the court made a number of key points:

• Pretext falls before an honest belief. The court emphasized that an employer’s honest belief that an employee has committed FMLA fraud can defeat a claim of pretext. Even where the employer’s actions may be “mistaken, foolish, trivial, or baseless,” there is no pretext so long as the actions were not taken for an unlawful reason.
• An honest belief must be reasonably based. The employer’s belief must be “a reasonably informed and considered decision” based on current, particularized facts. Here, the employee argued that the concrete saw he used was never weighed and, as a result, the investigator did not witness an actual violation of the ten-pound weight restriction. However, the employer had compared the saw used by the employee to one in the employer’s possession and had researched the manufacturer’s product specifications. The court found that, based on its comparison and research, the employer had reasonably believed that the saw weighed approximately 16 pounds, exceeding the weight restriction. Because the employer honestly believed that the employee violated his medical restrictions, the court determined that the burden of production shifted to the employee to demonstrate that the employer’s reliance on those facts was unreasonable.
• Employers may ensure the legitimate use of leave. As the court noted, the FMLA allows employers to investigate suspected abuse of leave. This can include hiring a private investigator to conduct surveillance. The court also noted the importance of the employer’s investigation and documentation. This thorough and documented process supported the court’s conclusion that the employer’s actions were not motivated by the use of FMLA leave, but rather by the employee’s misconduct.

Implications for Employers

This case serves as a reminder that while the FMLA provides important protections, it does not provide a shield for fraudulent or dishonest conduct. The court highlighted the balance between employee rights and employer responsibilities under the FMLA. Both parties must act in good faith: employees must use leave for its intended purpose, and employers should ensure that any disciplinary action is grounded in evidence and consistent with the law.