What did I do wrong?” and “Am I doing this correctly?” are frequent questions from clients regarding FMLA administration.  This is the 26th blog in in this series, which digs into the FMLA regulations and related issues to address discrete mis-steps that can result in legal liability.

Increasing legal risk by making stray comments while investigating potential FMLA leave abuse.

While employers may not discourage legitimate FMLA use, employers can (and should) investigate suspected employee abuse of FMLA leave.  In January 2018, we discussed the perils of not adequately investigating potential FMLA abuse before taking action.  We now discuss a similar topic: how just one stray comment can undo an otherwise effective investigation into FMLA abuse.

In Poitras v. ConnectiCare, Inc., 206 F. Supp. 3d 736 (D. Conn. 2016), an employee was granted FMLA leave based on a spinal condition that caused pain and prevented her from standing or sitting for long periods while at work.  While out on leave, the employee attended a non-work event at a local bar.  Soon afterward, a video and photos surfaced of the employee drinking and dancing at the event.  Coworkers informed supervisors of the employee’s behavior, and the employer investigated for potential FMLA abuse.  During the investigation, the employee asked for an additional 30 days of FMLA leave, which was approved.  The investigation later revealed that, in addition to the event at the bar, the employee delivered Avon products to another office while on leave.  The employer terminated the employee for FMLA abuse.

Although the employer relied upon the “honest belief” defense and the strength of its investigation, the court sided with the employee.  Significantly, the court focused on a single remark made by one of the managers, a decisionmaker, who made the comment that she decided termination was proper when she learned that the employee had requested additional FMLA leave.  The court reasoned that this remark showed that the employer’s true motive might have been retaliation against the employee for taking FMLA leave—not for abusing that leave.

What can we learn from this? One stray remark can be costly. Good faith compliance with the FMLA is key to successfully defending FMLA claims and managers and supervisors should be trained on FMLA obligations.