Court docket OKs employee surveillance to root out FMLA abuse

Diving letter:

  • A chemical company did not violate the Family and Medical Leave Act (FMLA) when it used video surveillance to demonstrate that an employee’s behavior was inconsistent with her stated need for disability leave, the Delaware District Court ruled (Snyder v EI ) DuPont de Nemours Inc., No. 18-1266 (D. Del., February 5, 2021)).
  • A long-time DuPont employee took an FMLA vacation to recover from foot surgery. While on vacation and while paying a short-term disability allowance, other DuPont employees reported seeing the technician “walking around at a pool party” even though their doctor had ordered not to put weight on their foot. After hearing this report, management engaged an investigative agency to monitor the worker to ensure she was following her doctor’s restrictions. The initial surveillance involved the technician getting in and out of her SUV, driving, walking, and descending stairs and lifting a young child – activities that directly violated her doctor’s instructions and conflicted with her report that “she rarely did could walk “. Later, when the technician returned to work on light duty and on a limited schedule due to persistent pain, surveillance recorded that she “walked through a Wal-Mart parking lot without crutches, boots, or limps, got a manicure and pedicure . ” Mow their lawn on a riding tractor for 90 minutes. “The company fired her a few weeks later. She sued, alleging, among other things, that the FMLA had retaliated.
  • The court granted DuPont’s motion for a summary of the judgment and dismissed several of the technician’s arguments. She alleged the company had failed to follow its progressive disciplinary policy. The court found that the company’s disciplinary policy specifically allowed for immediate termination. It also tried to claim that the company’s surveillance showed “discriminatory animus”. Nothing in the FMLA prevents employers from ensuring workers who are on vacation don’t abuse their vacation, the court said, citing an earlier case.

Dive Insight:

This decision gives guidance to employers wondering whether employees are abusing their vacation time, wrote Stacy M. Bunck, a managing shareholder at Ogletree Deakins, in a blog post.

“It is not uncommon for employees to question the legitimacy of an employee’s short-term disability leave after discovering inconsistent behavior. In such a scenario, employers may want to consider whether to monitor and determine if the employee is in acts in a manner inconsistent with his own doctor’s instructions regarding physical limitations, ”suggested Bunck.

Employers can investigate suspected FMLA abuse and take disciplinary action, but experts do not recommend starting with a “suspicion of wrongdoing”. In one 2018 case, the human resources department’s behavior was astute and hostile when it was suspected that an employee was abusing the FMLA vacation. The case resulted in a $ 2 million jury verdict.

It’s worth noting that FMLA vacations and vacations are not mutually exclusive, experts have said, but there are limits. A California court ruled that the Union Pacific Railroad was authorized to release an employee who had taken an FMLA vacation and then appeared on a colleague’s Facebook live video from a fishing trip, for example.

According to experts, a temporary vacation in particular can be suitable for abuse. For example, the Chicago Inspectorate General concluded that three workers had abused their right to temporary vacation when they took it on a cruise they booked almost a year in advance.

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