On October 31, 2016, the Fourth Circuit Court of Appeals issued a decision that confirmed an employer’s right to take adverse employment action against an employee who fraudulently uses FMLA leave. In Sharif v. United Airlines, Inc., Case No. 15-1747 (4th Cir., Oct. 31, 2016), the Court upheld United Airlines decision to discharge Masoud Sharif for fraudulently using FMLA leave, finding that “[t]o hold otherwise would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons.”

Sharif and his wife, both employees of United, took a scheduled vacation to South Africa and Italy from March 16 through April 4, 2016. While Sharif’s spouse was able to use approved vacation for the entire time period, Sharif was unable to obtain approved time off for his scheduled shift on March 30.  On the morning of March 30 (at 1:00 a.m. Eastern Standard Time), Sharif called United and requested intermittent FMLA leave pursuant to a certification already in place for his anxiety disorder.  The following day, Sharif and his wife traveled from South Africa to Italy where their vacation continued.  After United noticed that Sharif had used FMLA leave for the only shift that he was scheduled to work in the middle of a lengthy vacation, an investigation was conducted into his use of FMLA leave.  When United questioned Sharif about his absence on March 30, he initially denied being scheduled to work that day and then provided a constantly shifting story about suffering a panic attack after not being able to secure a seat on a flight back to the United States.  However, Sharif was unable to provide any evidence to United of his attempts to secure a flight home for his scheduled shift on March 30.  After United notified Sharif of its intent to terminate his employment for fraudulent use of FMLA leave and dishonesty during the investigation, Sharif decided to retire and then filed suit against United alleging retaliation for his use of FMLA leave.

In rejecting Sharif’s claims under the FMLA, the Fourth Circuit relied on the Department of Labor’s pronouncement that an employee who fraudulently obtains FMLA leave is not protected by the FMLA’s provisions related to reinstatement and benefits protection. 29 C.F.R. § 825.216(d).  Importantly, the Court stated that “[w]hile a company may not deny valid requests for leave, and an employer cannot use allegations of dishonesty as a pretext for subsequent retaliation, it is equally important to prevent the FMLA from being abused.”

One important takeaway from this case for employers relates to investigations of FMLA abuse. Here, Sharif argued that United failed to conduct an adequate investigation of the alleged fraud before taking adverse action.  However, in rejecting that claim, the Fourth Circuit held that United had made a “reasonably informed and considered decision” before terminating Sharif.  Based upon this decision, employers who conduct a thorough investigation before taking adverse action against an employee suspected of leave abuse should be better suited to defend against subsequent claims of FMLA retaliation.

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Photo of Ellison F. McCoy Ellison F. McCoy

Ellison F. McCoy is the office managing principal of the Greenville, South Carolina, office of Jackson Lewis P.C. He is engaged exclusively in the practice of employment law on behalf of management.

Ellison has represented employers in litigation matters before state and federal…

Ellison F. McCoy is the office managing principal of the Greenville, South Carolina, office of Jackson Lewis P.C. He is engaged exclusively in the practice of employment law on behalf of management.

Ellison has represented employers in litigation matters before state and federal administrative agencies and various state and federal trial and appellate courts. During his legal career, Ellison has handled a wide-variety of employment matters involving claims such as discrimination based on race, sex, national origin, age and disability; sexual and racial harassment; wrongful discharge; retaliation; breach of contract; defamation; covenants not to compete and trade secret violations; and violations of the Family Medical Leave Act. In addition, he has extensive experience counseling clients on compliance issues and litigation avoidance strategies and regularly conducts management training programs on various employment-related topics. Ellison devotes a significant amount of his practice to assisting employers with disability practice management, particularly including issues arising under the Americans with Disabilities Act and Family and Medical Leave Act.