By Ryan L. Young, Esq.
I've recently received a number of calls from clients whose operations are being disrupted by the granting of FMLA leave ("leave") to their employees. Leave can really throw a monkey wrench into an employer's operations. For some employers, a temporary replacement tapers the disruption. For others, leave creates havoc on the remaining employees who must pick up the slack. While leave is certainly necessary in many cases, the generosity of the legislation leaves it a prime target for abuse. As a result, employers are keeping an eye out for abuse and often ask what they can do when they suspect that an employee is abusing leave. One solution may surprise you - the use of private investigators and off-duty police officers to investigate possible abuse.
Employee abuse of sick days and FMLA leave is not a recent phenomenon. Kronos, a workforce productivity firm, recently found that 57% of U.S. salaried employees take sick days when they're not really sick. Employers' desire to stop this abuse ahs paved the way for a thriving niche in the investigative services industry, with legal precedent to support it.
In Vail v. Raybestos Products Company, a 7th Circuit case, the employer hired an off-duty police officer to monitor the activities of an employee who was suspected of abusing intermittent FMLA leave. The employer knew that the employee's husband had a lawn-mowing business and the employee was known to help out part-time. The employer became increasingly suspicious when the employee's use of intermittent leave became more frequent during the summer and fall. After the investigator confirmed that he had witnessed the employee mowing lawns on a day she was supposed to be taking leave, the employer terminated her. The employee brought suit, claiming that her termination interfered with her right to take FMLA leave. The 7th Circuit held that an employer does not violate the FMLA if it refuses to reinstate the employee based on "honest suspicion" that the employee was abusing his or her leave. The Court stated, "[t]hough the use of an off-duty officer to follow an employee on leave may not be preferred employer behavior," it was not unlawful. The Court determined that the information gathered by the investigator was sufficient ot give the employer an "honest suspicion" that the employee was not using her leave for the intended purpose and, therefore, the employer did not violate her rights under the FMLA.
Given the Court's decision, employers are probably rushing out to retain the services of a trusty private investigator or off-duty police officer, right? Not necessarily. The services of a good private investigator can reach upwards of $75 per hour and successful surveillance can take days and/or weeks. Further, while the 7th Circuit's decision did not explicitly require a suspicion of abuse before conducting an investigation, prudent employers will have information creating a suspicion of abuse before they hire the services of a private investigator. This will ensure that money is not wasted on fruitless investigations and minimize potential problems resulting from employees who feel that such investigations infringe on their privacy.