“Honest Suspicion” Continues to Defeat FMLA Claims and Reminds Employers – I DID IT – Investigate, Document, Interview, Document, Investigate, Terminate

Contributed by Brandon Anderson

The U.S. Court of Appeals for the Seventh Circuit has again upheld that an employer can lawfully terminate an employee based on an “honest suspicion” that the employee is abusing FMLA leave.

In Scruggs v. Carrier Corp., the defendant-employer set out to curtail employees’ abuse of company leave policies including FMLA leave. In addition to certain administrative changes, the employer hired a private investigator to follow certain employees that the employer believed to be abusing FMLA leave. 

The plaintiff-employee in the case had been approved for intermittent FMLA leave to take his mother, who is in a nursing home, to and from medical appointments. The employer’s investigator conducted surveillance of the employee on three occasions.  The first two occasions were unremarkable. On the third occasion, however, the investigator conducted video surveillance from approximately 8:00 a.m. – 4:30 p.m. and never saw the employee or the employee’s car leave his property.  The investigator presented his findings to the employer in a documented report.

When the employer later interviewed the employee and allowed him an opportunity to explain his absence, the employee stated that he did not recall the specifics, but was certain he was assisting his mother and that he did not abuse his leave. The employer documented the interview and continued its investigation.

During the investigation process, the employee provided the employer with documentation from the nursing home and several notes from his mother’s doctor. The documentation indicated that the employee may have brought his mother to the doctor’s office, but there were inconsistencies in the documentation and the mother was not actually seen by the doctor on the day in question. The employer also noticed inconsistencies in the documentation with regard to prior alleged FMLA absences.  After considering all of this evidence, the employer terminated the employee for abusing his FMLA leave.

The employee filed suit, but the trial court ruled that while there was a question of fact as to whether the employee used his FMLA leave on the day in question, it was undisputed that the employer had an “honest suspicion” that the employee misused his leave, and the honest suspicion was enough to defeat the employee’s claims of FMLA interference and retaliation. On appeal, the Seventh Circuit upheld the trial court’s decision on the basis that the video surveillance, the employee’s inability to recall the specifics regarding the day in question, and the inconsistent documentation was enough to create an honest suspicion that would defeat any FMLA claim. 

Regardless of the facts, an “honest suspicion” of FMLA abuse can be legal grounds for terminating an employee without violating the employee’s FMLA rights.  This decision should not be taken as a mandate for dismissing employees who are believed to be abusing FMLA leave.  Rather, it is a reminder that a properly handled, well-documented investigation that gives an employee an opportunity to explain his or her actions and the employee’s explanation itself is investigated before the decision to terminate is a “best practice” that will best protect an employer from potential litigation.