Managing FMLA Fraud: Using Your Policy To Your Advantage

January 11, 2016

Authored by: Christy Phanthavong and Chris Rylands

ThinkstockPhotos-466150788This post is the first in a three-part series of posts on managing FMLA fraud with tips from recent cases. In Alexander v. Bd. of Educ. of City Sch. Dist., No. 14 Civ. 8553, 2015 WL 2330126 (S.D.N.Y. May 14, 2015), for example, the court provided guidance on how FMLA policies can help support a termination decision when an employee misuses FMLA leave.

The employee in Alexander told her employer she needed intermittent FMLA leave to take her child to physical therapy appointments. Her request was approved after a doctor’s note confirmed the need for leave. Subsequently, the child refused to attend the appointments. Rather than update her employer about the situation, however, the employee attended classes while on leave during the scheduled appointment times. Trouble arose for the employee when she submitted a tuition reimbursement request for the course, and her employment was terminated for abuse of FMLA leave after she admitted these facts during the employer’s investigation.

Summary judgment for the employer on the employee’s FMLA retaliation claim – the obvious result – was granted. In doing so, the court rejected the employee’s argument that the motivation for her termination could not have been her abuse of FMLA leave, because she was “never advised that she had to apprise her employer of the need to terminate her FMLA intermittent leave” when she no longer planned to attend the physical therapy appointments. The court noted that, to the contrary, information on the employer’s website pertaining to its FMLA policy expressly stated that if it became apparent that an employee could resume work earlier than originally anticipated, the employee must notify the employer as soon as possible.

Takeaway: It’s always helpful with employment disputes, including those involving FMLA retaliation claims, to be able to point to specific policy language that the employee violated. In this case, the express requirement for the employee to notify the employer of a change in her need for leave won the day.

While not at issue in this case, other helpful policy language could include a statement that the submission of false information in support of a request for FMLA leave, or the abuse or misuse of approved FMLA leave, may result in discipline, up to and including immediate termination.