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Suspect leave abuse? Consider surveillance to catch those trying to game FMLA system

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in FMLA Guidelines,Human Resources

Absenteeism is a big problem for many employers. If you suspect that some employees are taking advantage of your leave programs, you can and should come up with a plan to catch them, as one employer recently did.

Recent case: Daryl’s employer approved him for intermittent FMLA leave to care for his mother, who was in a nursing home.

To combat a persistent absenteeism problem, the employer came up with a plan to check up on absent employees, including those taking intermittent FMLA leave. The program sent investigators into the field, targeting a select group of 35 employees who had more unplanned absences than the company average.

One day, Daryl called in to take intermittent leave. Surveillance showed he never left his house. He was terminated for abusing his leave.

Daryl sued, alleging interference with FMLA leave.

In court documents, he said he did see his mother that day. He claimed he left by the back door. To explain why no cars left his driveway, he said his brother picked him up. When asked why the nursing home logs didn’t match his claim they picked his mother up in the morning, he claimed the records were wrong.

An unconvinced court tossed out his lawsuit. It concluded that it wouldn’t matter whether the employer was actually right about the incident. What mattered was that it honestly believed Daryl had abused his leave. (Scruggs v. Carrier Corporation, No. 11-3420, 7th Cir., 2012)

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