Migraine headaches can be serious business—sometimes requiringleave. But what if you discover that your migraine-suffering employee used her FMLA time to cut lawns at her side job? An Indiana employer facing that situation recently handled that situation aggressively—and legally …
Case In Point: Diana Vail worked the third shift (11 p.m. to 7 a.m.) at an auto parts manufacturing plant. Vail sometimes suffered from migraine headaches that, she said, “crept on her with short notice.” When they’d occur, she’d call a supervisor and say she was taking.
The company knew that Vail’s husband owned a lawn-mowing business and that she worked for him on a part-time basis. The company also noted that her FMLA requests increased during the summer hours when her husband’s services were in peak demand.
So, the company hired an off-duty police officer to follow her. It suspected she was abusing theand was, in fact, healthy enough to work for her husband.
During one of Vail’s migraine-induced FMLA leaves, the investigator observed Vail mowing the lawn of a husband’s customer. The company fired Vail because it had an “honest belief” that Vail was not using her leave for its intended purpose.
Vail sued, claiming her employer unlawfully interfered with her Vail v. Raybestos Products Co., 7th Cir., 7/21/08). For Vail to prevail on an FMLA-interference claim, she must prove that she used her FMLA leave “for the intended purpose of the leave” and that her employer took negative action against her because of the leave. (
How did the case end and what lessons can be learned?
3 Lessons Learned Without Having to Go to Court
1. Be consistent. Apply yourconsistently to avoid discrimination lawsuits. In this case, the employer granted the leave consistent with its policy.
2. Collect proof—don’t just make assumptions. In this case, the company didn’t just assume that Vail was working for her husband because of the connection between her FMLA requests and his busy season. It showed the court clear evidence of her side job. And the court relied heavily on those surveillance reports (which probably gave the employee another migraine, too).
3. Set a “no moonlighting on leave” policy. If you have a uniform company policy that prohibits employees from moonlighting during any kind of leave, you also can ban employees from working during FMLA leave. The key: Apply this rule consistently. Ban moonlighting during all types of leave, not just FMLA leave. That doesn’t mean you have to ban moonlighting for all employees at all times.
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