I hope when you read my blogs that you have the reaction “I didn’t know that.” That is my goal, to help educate you, along with making you think or provoking you. I try to get the same thing from the blog I read. One of the ones that is usually successful in that way is Eric B. Meyer’s The Employer Handbook. Two posts of his have taught me something new about the FMLA and the concept of an “honest belief.”
You often read that FMLA is one of the most abused laws that we have on the books. Employers feel as if FMLA is used by some employees as a “get out jail free card” for taking time off that is not really needed. The employer feels that as long as the employee is tying their absence to a FMLA reason they cannot do anything to the employee even if they feel the employee’s reason may be suspect. This is where the lesson from Meyer comes in. According to him “…so long as the employer truly believes in its reason for terminating an employee on FMLA — and that reason is not FMLA-motivated — , the employer wins even if its reason is ultimately found to be mistaken, foolish, trivial, or baseless.”
Eric provides two examples of what he means. In one case a correction officer had been granted FMLA time to get medical treatment. Instead he went to a court hearing. His employer docked his pay one day. The second example was a healthcare worker who took FMLA for back pain that supposedly left her “completely incapacitated”. Her employer fired her after pictures surfaced that showed her at a local beer festival during one of her periods of “incapacity”. In both cases the courts upheld that the employers were within their rights to terminate the employees because they had the honest belief that the employee was not using their time for the stated reasons. The employer had the honest belief the employee was abusing the time that had been granted.
Meyer’s points out that for a plaintiff to make out a claim for FMLA interference, they must show three elements:
- He was eligible to take FMLA leave;
- He took leave for the intended purpose of the leave; and
- His employer then denied a benefit as a result of that leave
Meyer teaches us that “An employer can defeat an interference claim by showing, among other things, that the employee did not take leave ‘for the intended purpose.’”
Two key points
There are two key points. First, make sure your reason for discipline is for abuse of FMLA and not that the employee is taking FMLA. I hope you see the difference there. The second point is that just because you feel you have an “honest belief” that there is abuse occurring you should still investigate and document your findings on the suspected belief. The courts have ruled that even if your “honest belief” reason for the discipline was found to be incorrect you may still be protected. However, without the documentation a jury may not be convinced that your reason was not just a pretext for taking action against an employee exercising their rights under the law. It is much better to document and bolster your argument before you ever get to court. In fact it may prevent you from going to court.
To get further information I will recommend you read Eric’s two posts on this material at:
Facebook pics of employee boozing at a festival ruin her FMLA claim
An honest belief is all it takes to fire a suspected FMLA abuser