Don’t let FMLA trip you up: Have HR investigate leave abuse

You expect employees to follow your attendance and time-reporting rules and probably discipline those who don’t. But you need to know that FMLA leave can be an attendance minefield where disciplinary actions can cause great damage. Employees who allege that employers “willfully” interfered with their FMLA rights or retaliated against them for taking FMLA leave have up to three years to sue.

One way to prevent the willful violation charge is to take the employee’s supervisor out of the disciplinary process. Instead, have the experts in HR determine whether the employee broke your attendance rules. Supervisors and managers may have their own agendas, and personality conflicts may spill over into the investigation. That won’t be a problem if someone neutral investigates. Add extra protection by having someone higher in the chain of command decide on the punishment.

Recent case: The Pennsylvania Human Relations Commission (PHRC) fired Marilyn Seifert because of alleged leave irregularities. Seifert recently had taken extensive FMLA leave to care for her dying mother, and she suspected that her dismissal was tied to that.

Seifert’s immediate supervisor was constantly hounding her about attendance, sometimes even shouting at her. But he didn’t actually discipline her and, in fact, only did one evaluation during her entire tenure. He rated her as satisfactory.

After Seifert took FMLA leave to care for her mother, her supervisor began complaining to upper management that her leave records were not accurate. That’s when the executive director told HR to investigate. They did—and found glaring irregularities in the records. The executive director, who wasn’t involved in the day-to-day operations of Seifert’s office, then made the decision to fire her.

More than two years later, Seifert filed her FMLA lawsuit. (The statute of limitations for FMLA violations is two years, but those who can prove their employers willfully violated the law have up to three years to sue.)

The court dismissed the case, reasoning that even if Seifert’s supervisor acted maliciously, that motivation didn’t extend to the independent investigation done by HR or the decision made by someone higher in the chain of command. (Seifert v. PHRC, No. 05-551, WD PA, 2007)