For example, consider the case of an employee who requested leave during the exact same time of year he had taken off four years earlier. His supervisor ordered surveillance, and terminated him when it turned up what appeared to be evidence of fraud. The employee in turn sued for retaliation and interference, and was granted a trial.
“Jumping to surveillance as the first step rather than the last resort, that’s where companies get into trouble,” Matthew S. Effland, shareholder at Ogletree Deakins in Indianapolis, said today at the Society for Human Resource Management’s annual conference in Las Vegas.
“If you’ve got ’em dead to rights, the argument can be made that [the leave] never was a protected activity,” and thus short circuit a retaliation claim, Effland said. “But my, what a gamble that is.”
Particularly dangerous is the impulse to order surveillance when an employee has taken FMLA leave for stress-related claims. Just because the employee has a stress-related condition doesn’t necessarily mean he or she is barred from everyday activities like grocery shopping, Effland observed.
“Courts are looking very closely at this, and they’re not going to give a company a free pass,” he said.