If you don’t have one, consider adding a general honesty or misrepresentation clause to your employee handbook. Such a clause can come in handy when you are looking for a solid reason to discharge someone who just isn’t being upfront and honest with the company, but technically may not have violated a specific work rule.
Recent case: Debra Brock worked for Honda as a production associate. When she had to have her gallbladder removed, she took. Her doctors certified how long she should stay off work, and she gave the certification to her supervisors, who approved her leave.
Meanwhile, the company got an anonymous phone call from someone who reported seeing Brock working as a dog groomer. Allegedly, Brock told the caller, “Don’t tell anyone I’m working here.”
Honda checked its records and saw that Brock was off work pursuant to her doctor’s certification. Naturally curious,decided to find out what Brock was actually doing while incapable of working on the production line.
Honda sent an investigator (and his dog) to a shop called Shaggy Dogs. The investigator spoke with Brock, who was wearing a Shaggy Dogs smock. Brock took the dog to be washed, brushed the dog and cleaned out the dog’s carrier before returning it to the investigator. The investigator captured it all on video.
When Brock’s leave was up, she was called into a meeting and asked about her activities while off. She denied working anywhere, but when confronted with the Shaggy Dogs business, she confessed to visiting the shop often and sometimes answering the phones. She was not told about the tape.
Honda fired Brock for violating a misrepresentation clause that appears in Honda’s handbook. She sued, alleging interference with her right to takeleave. It was then that she learned everything had been videotaped.
The court tossed out her case. It reasoned that Honda had a legitimate reason for its decision: Brock violated a company rule by being dishonest about her Shaggy Dog story. That had nothing to do with her FMLA leave. (Brock v. Honda of America, No. 2:06-CV-257, SD OH, 2007)
Final note: Another way to discourage employees on FMLA leave from using their time off to work elsewhere is to enforce a “no moonlighting” clause.
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