The Options Tennessee Employers Have When They Detect Perceived FMLA Leave Misuse

It is often a tricky situation for an employer. You’ve approved an employee’s taking a certain amount of time off under the Family and Medical Leave Act, only to discover soon thereafter that your employee wasn’t completely honest with you about his leave. When an employer encounters this issue, it is important to understand what the laws says are your options. In a recent case from the Fourth Circuit Court of Appeals, that court concluded that an employer couldn’t be liable for FMLA retaliation when it forced into retirement an employee whom it deemed to have misused his FMLA leave. The employer won because it had ample proof that the employee had been dishonest, and dishonesty and abuse of FMLA leave were permissible non-discriminatory reasons for the employer’s actions.

Even though this recent case originated in West Virginia, this ruling from the Fourth Circuit (which covers the Carolinas, Virginia, West Virginia, and Maryland) is an important reminder of the state of the law in Tennessee (as well as Kentucky, Michigan, and Ohio) when it comes to what an employer can and cannot do in response to a situation in which an employee is reasonably suspected of misusing FMLA leave. In this recent case, Masoud Sharif was an employee working for United Airlines at the Dulles Airport in Northern Virginia. His wife had managed to accumulate a two-and-a-half-week block of time off from work for the couple to go on vacation to South Africa. Sharif had secured almost three weeks off, from March 16 to April 5…except that he was scheduled to work on March 30.

In the early morning hours of March 30, Sharif called in to take FMLA leave, since the employer had approved Sharif’s use of intermittent FMLA leave to deal with his anxiety disorder. Given his use of an FMLA leave day in the middle of his long block of approved time off, the airline’s human resources department investigated. When questioned, Sharif gave a series of inconsistent statements. First, he said he wasn’t scheduled to work. After that, he said he didn’t recall missing work or calling in sick. Eventually, he told the employer that he had tried to catch a flight back to the United States but was unable to do so and that this failure had triggered a debilitating panic attack.

The airline was not convinced and ultimately forced Sharif into retirement under threat of termination. Subsequently, he launched an FMLA retaliation lawsuit. The employer sought and obtained a summary judgment in its favor. Sharif appealed this decision to the Fourth Circuit, but he again lost. The appeals court explained that, in order to pursue his case, Sharif needed to show that United’s stated reasons for firing him — dishonesty and misuse of FMLA leave — were really just pretexts for retaliation. The appeals court stated that the record of proof in the case painted a clear picture of an employee abusing his FMLA leave in order to dodge working a shift that would have significantly interrupted his vacation. The case, the court concluded, offered no choice but to rule for the employer, since doing 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.”

So what should Tennessee employers do if they face a situation like the one confronted by United in this scenario? Four years ago, the Sixth Circuit issued a ruling offering much insight. In Seeger v. Cincinnati Bell Tel. Co., the court looked at a case in which an employee took FMLA and paid disability leave following back surgery. The employer asked Seeger’s doctor to consider approving him for part-time sedentary work, but the doctor refused. Only a few days later, the employee was seen walking around, appearing to move without restriction. The employer promptly fired Seeger, citing fraudulent use of FMLA and disability leave. The court in Seeger’s case concluded that the employee failed to prove that the employer’s stated reason for its decision to terminate — fraud — was really just a pretext for retaliation.

The Sixth Circuit’s ruling in the Seeger case contains one significant difference from the Fourth Circuit’s Sharif decision. The Sixth Circuit stated that, if the employer proved it had an “honest belief” in the accuracy of its non-discriminatory basis for terminating an employee, the employer cannot be held liable for FMLA retaliation, even if the employer’s basis was actually erroneous. The Fourth Circuit stopped short of adopting this “honest belief” rule in its Sharif decision. This difference means that, if an employee in Tennessee decides to bring an FMLA retaliation lawsuit in a situation similar to Seeger’s and Sharif’s, the employer has even more options for defeating that claim than would an employer facing suit in North Carolina, Virginia, or any of the states within the Fourth Circuit.

Whether you are an employer facing a situation involving an employee’s fraudulent use of FMLA leave, or you’re an employee whose employer is retaliating against you for validly using FMLA leave, you need capable counsel with experience in handling FMLA cases. The skilled Tennessee FMLA attorneys at Parks, Chesin & Walbert have many years helping employees and employers facing these and similar situations in FMLA cases, and we are ready to help you with your case.

To speak with one of our lawyers about your case, call 404-873-8048.

More blog posts:

Bank Successfully Defeats FMLA, ADA Lawsuit Brought by Tennessee Teller with Lupus, Atlanta Employment Attorneys Blog, Sept. 7, 2016

Sixth Circuit Rules Against Employee in FMLA Case Due to Absence of Damages, Atlanta Employment Attorneys Blog, July 27, 2016

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