Firing OK for cheating discovered during FMLA

Employees who take FMLA leave are entitled to return to their old jobs or equivalent ones.

But what if you learn during an employee’s time out on FMLA leave that she wasn’t everything you believed her to be? That’s what happened in one recent case.

Recent case: Kimberly worked as an administrative assistant for one of Dow Chemical’s attorneys. The majority of her work required her to be online and connected to Dow’s network—either connected to servers while at Dow or using the company’s virtual private network when she was away from the office.

Kimberly worked an every-other-Friday-off schedule that gave her a three-day weekend twice a month if she completed the necessary work. However, the attorney she worked for suspected she was cheating on her hours and gaming the system.

Kimberly took two months of FMLA leave. During her absence, an intern was assigned to pick up her workload. The intern told the attorney that most of Kimberly’s work had either been late or had been done incorrectly.


Eventually, Kimberly returned from FMLA leave.

Armed with the suspicion that Kimberly might have been cheating on her time records, the attorney began to carefully monitor her comings and goings. The attorney discovered a 60-hour difference between the records that Kimberly submitted and entry and exit times recorded by the Dow facility’s card-swipe system. Kimberly attributed the difference to working from home some nights.

Dow fired her anyway for cheating on her time records. The virtual private network records didn’t show she had been logged on during the times she claimed she was working at home.

Kimberly sued, alleging retaliation for taking FMLA leave, and a jury awarded her $175,000.

However, a federal appeals court reversed. It said Dow wasn’t required to ignore the information it discovered while Kimberly was out on FMLA leave, and that acting on that information wasn’t retaliation.

Since Dow had a reasonable belief that Kimberly’s records didn’t match up, it was free to fire her whether she had just returned from FMLA leave or not. (Hartman v. Dow Chemical, No. 15-2318, 6th Cir., 2016)