11/12/2015 1 GROUNDING YOUR FREQUENT FLYERS PREVENTING FMLA ABUSE Joe Murray [email protected](404) 525-8622 November 10, 2015 HOW BIG OF A PROBLEM? 2013 DOL survey: • 3% of covered worksites reported abuse 2007 SHRM survey: • 39% of HR professionals granted leave they believed to be illegitimate
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GROUNDING YOUR FREQUENT FLYERS › sites › shrmrome.shrm.org...FREQUENT FLYERS PREVENTING FMLAABUSE Joe Murray [email protected] (404) 525-8622 November 10, 2015 HOW BIG OF A
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• Court found no evidence company hadulterior motive for termination
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MOONLIGHTING
Agee v. Northwest Airlines, Inc. (E.D. Mich.)
• Employer apparently did not havepolicy against moonlighting
• Employee went out on FMLA leave forcondition that allegedly rendered himincapable of working
MOONLIGHTING
Agee (cont.)
• Employee then began working on aranch caring for 50 horses
• Terminated for lying about reason forleave
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WHAT DO YOU THINK?
1. Yes
2. No
Was Agee’s termination upheldby the court?
MOONLIGHTING
Agee (cont.)
• Court determined termination wasbased on employee’s lie, not his use ofFMLA
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PERSONAL ERRANDS
Kitts v. General North Telephone, Inc.(S.D. Oh.)
• Employee was authorized to takeintermittent leave for panic disorder
• Need for leave could be up to once aweek
PERSONAL ERRANDS
Kitts (cont.)
• Employer denied PTO to attend parent-teacher conference
• On day of conference, Kitts took FMLAleave, then later decided she feltbetter and attended conference
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PERSONAL ERRANDS
Kitts (cont.)
• Supervisor became suspicious, but Kittsdenied going to conference
• Employer hired P.I. and Kitts admittedto lying
• Employer terminated Kitts formisrepresenting health status forabsence
WHAT DO YOU THINK?
1. Yes
2. No
Was Kitts’ termination upheld by thecourt?
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PERSONAL ERRANDS
Kitts (cont.)
• FMLA does not prohibit investigatingalleged dishonesty or terminatingfor misconduct
PERSONAL ERRANDSMosley v. Hedges (N.D. Ill.)
• Employer suspected FMLA abuse andhired P.I.
• P.I. observed Mosley walking, driving,running errands, and shopping
• Mosley terminated for engaging inactivities contrary to medicallimitations
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WHAT DO YOU THINK?
1. Yes
2. No
Was Mosley’s termination upheld bythe court?
PERSONAL ERRANDSMosley (cont.)
• Company honestly believed employeewas misusing FMLA
BUT BEWARE
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PERSONAL ERRANDSNelson v. Oshkosh Truck Corp.(E.D. Wis.)
• “FMLA contains no requirement that anindividual on intermittent leave mustimmediately return home, shut theblinds, and emerge only whenprepared to work.”
CARING FOR FAMILY MEMBERS
• How much time do youhave to spend caring forfamily member?
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CARING FOR FAMILY MEMBERS
Scruggs v. Carrier Corp. (7th Cir.)
• Employee had FMLA to take mother todoctor’s appointment every six months
• P.I.’s video surveillance showedScruggs not leaving own house onday he had taken leave to takemother to doctor
• Employer terminated Scruggs
WHAT DO YOU THINK?
1. Yes
2. No
Was Scruggs’ termination upheldby the court?
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CARING FOR FAMILY MEMBERS
Stonum v. U.S. Airways, Inc. (S.D. Oh.)
• Obtained FMLA leave to care for mother
• Co-worker informed supervisor thatStonum was using leave to do other things
• P.I. hired and observed Stonum’s activities
• On one occasion, Stonum took a fullday absence and spent 12 minuteswith mother
CARING FOR FAMILY MEMBERS
Stonum (cont.)
• On another day, he didn’t visit at all
• Stonum denied abuse and employerterminated her for repeatedly misusingher FMLA leave
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WHAT DO YOU THINK?
1. Yes
2. No
Was Stonum’s termination upheldby the court?
TAKING OR EXTENDING VACATION
Hughes v. City of Bethlehem (3rd Cir.)
• “Whatever happens in Las Vegas doesnot necessarily stay in Las Vegas!”
• Employee is diabetic
• Went to Las Vegas for vacation andpermanent lip/eyebrow tattoos forcosmetic reasons
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TAKING OR EXTENDING VACATION
Hughes (cont.)
• Timing conflicted with two days shewas supposed to work, so she called insick
• “Anonymous” note claimed Hugheswas improperly using sick leave
TAKING OR EXTENDING VACATION
Hughes (cont.)
• Hughes denied going to Los Vegas
• Employer ultimately determinedHughes had been in Los Vegas, andterminated her employment
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WHAT DO YOU THINK?
1. Yes
2. No
Was Hughes’ termination upheldby the court?
TAKING OR EXTENDING VACATION
Hughes (cont.)
• No interference – calling in “sick” didnot provide notice FMLA leave wasneeded
• Legitimate reason for termination –improper use of sick leave andattempt to cover up herwhereabouts
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HAVING “FUN” DURING LEAVE
Jaszczyszyn v. Advantage HealthPhysicians Network (6th Cir.)
• Employee on intermittent leave for backpain that could flare up “about fourtimes a month”
• “Friend” posted pictures on Facebookof employee attending Polishheritage “festival”
HAVING “FUN” DURING LEAVE
Jaszczyszyn (cont.)
• Other employees were upset at havingto cover for employee while she was outhaving fun and reported her
• Employer investigated and terminatedemployee for FMLA abuse
• Employee sued for interference
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WHAT DO YOU THINK?
1. Yes
2. No
Was Jaszczyszyn’s termination upheld bythe court?
HAVING “FUN” DURING LEAVE
Jaszczyszyn (cont.)
• Interference claim failed because shereceived all leave to which she wasentitled