Yelp’s ‘trustworthy suspicion’ of FMLA abuse was sufficient to sink employee’s declare

Diving letter:

  • An employer only needs to have the “honest suspicion” that his employee has abused her leave under the Family and Sick Leave Act in order to thwart an employee’s right to be reinstated. A federal court in Illinois has ruled to grant Yelp’s petition for dismissal (Smith v. Yelp), Inc., Item 20-CV-1166 (ND Ill. March 30, 2021)).
  • The plaintiff was denied leave to travel to Thailand. A few months later, she was diagnosed with sciatica and a herniated disc in her back, which affected her ability to sit. Yelp approved their FMLA vacation. While on vacation, the applicant made a trip to Thailand which was discovered by her staff, who reported the trip to management. The plaintiff wrote to a colleague that she wanted to “beat these employees”. Yelp management received the texts and dismissed the plaintiff for dishonesty regarding her medical leave and for violating Yelp’s anti-violence policy. The plaintiff sued Yelp for FMLA interference and retaliation.
  • The court granted Yelp’s motion to dismiss the lawsuit. The district court ruled that an employer’s “honest suspicion” that the employee was not taking medical leave for its intended purpose was sufficient to violate the employee’s rights under the FMLA, and found that an employee could only do so is entitled to reinstatement of the job if the employee takes vacation for the intended purpose. Even if Smith happened to be on FMLA vacation when she committed a flammable crime – violating anti-violence policies – that alone does not protect her from dismissal, the court said. Even if the employer “could have done a more thorough investigation” this is not necessary. The court found that the employer does not have to prove to the employee that he actually took vacation. “Real suspicion is enough to rule out the employee’s FMLA claims.”

Dive Insight:

Sometimes employees give false reasons for taking FMLA vacation or engaging in activities during such vacation that seem inconsistent with being away from work. For example, while on an FMLA vacation, a Union Pacific employee appeared on an employee’s live Facebook video about a fishing trip and was subsequently fired for FMLA abuse. The court ruled that the employer was entitled to fire the employee.

However, experts have said that FMLA vacations and vacations are not mutually exclusive.

Employers are allowed to investigate and discipline suspected FMLA abuse, but should not start with suspicion of wrongdoing. When the employer was found to have failed in good faith, a Massachusetts jury awarded an employee $ 2 million for questions about vacation.

The investigation can include monitoring. Some courts have upheld surveillance by an employer. A federal court in Delaware ruled earlier this year that a chemical company that uses video surveillance to prove that an employee’s conduct is inconsistent with her stated need for disability leave is not in violation of the FMLA.

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