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Mindy Chapman, Esq., Mindy Chapman & Associates
Mindy is a nationally recognized authority in EEO laws and is a contributing editor to the HR Specialist: Employment Law
monthly newsletter. She is highly regarded for her workplace compliance
training that “clicks and sticks,” because it is practical and
memorable. She is also the coauthor of the American Bar Association’s
bestseller and authority on civil rights training, “Case Dismissed! Taking Your Harassment Prevention Training to Trial."
The Society for Human Resources Management (SHRM) has recognized Mindy as one of its Top Ten Speakers nationally. She has trained extensively in all industries at all levels of the
workforce—from boardroom executives to managers and supervisors and to
hourly employees in union and non-union environments.
Have you ever approved FMLA leave for an employee but had a sneaking suspicion that the time off would be used for much more than bed rest? In this new ruling, the company actually videotaped a supposedly injured FMLA-leave taker building a porch on his house. But be careful not to pull out the “You’re Fired!” finger too quickly or you may find yourself in the center of an FMLA retaliation suit.
Case in Point: James Weimer worked on a Honda assembly line at an Ohio plant. One day, he suffered a concussion when a co-worker closed his head into the trunk of his car. The company doctor ordered him off work pending further exams by a specialist. Weimer ask for FMLA leave and received it.
Weimer was cleared to return to work on March 15 but actually came back the following day. Honda, acting on a tip, videotaped Weimer on March 15 building a front porch on his home. When he returned to work on March 16, the company questioned him about his lumberjack activates. Weimer didn’t deny it.
Honda fired him for dishonesty. It argued that Weimer had “abused” his FMLA leave, using it to build a porch, not to recover from injury. Honda asserted that it didn’t fire Weimer for exercising his FMLA rights, but rather for staying on it too long when he no longer needed it. (The FMLA says that employees can “lose the protections of the FMLA when he or she does not use the leave for its intended purpose.”)
In response, Weimer shot back with an FMLA retaliation lawsuit. He claimed that he didn’t believe he needed FMLA leave the entire time but had to wait for Honda’s doctors to clear him to come back to work. (Weimer v. Honda of Am. Mfg. Inc., 6/12/08)
How did the case end … and what lessons can be learned?The court last week sided with Weimer, refusing to grant summary judgement to Honda. It sent the case to the jury to decide whether Weimer was merely waiting for the doctors’ orders or if he was actually an “opportunistic schemer taking advantage of the system in order to have time to enhance the curb appeal of his home.”
The court also noted that there was a dispute as to whether the employee’s injuries prevented him from fulfilling his job description even though those same injuries may not have prevented him from doing yard work and building a porch.
3 Lessons Learned … Without Going to Court
1. Don’t trip over the red tape. Employees can get caught in the web of FMLA leave and waiting for company doctors to give clearance to return to work. Firing employees while they’re waiting for your corporate red tape to untangle can look like retaliation and wrongful termination.2. FMLA-leave takers don’t have to stay in bed. Many courts, including this one, have said that employees who are out on FMLA leave can engage in activities that are unrelated to the medical time off. So, if you see an FMLA-leave taker at the movies, the grocery store or mowing the lawn, don’t automatically assume they’re abusing leave. They still may be receiving treatment for the part of their body needed for work, but not the part needed for play.
3. Train supervisors about the FMLA. It’s important for all managers and supervisors to understand employees’ leave rights so they don’t make employment decisions, like firing and demoting, that can trigger liability.
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