In our last installment, we looked at what counts (and doesn’t count) as Family and Medical Leave Act (FMLA) abuse and fraud. This article will highlight moonlighting and other activities while on leave.
What should you do when you get a tip that an employee on FMLA leave is actually working at another job? The truth is out there, and some employers are taking what seem like drastic measures to answer their questions and curb possible abuse.
When you learn that an employee is working for another employer while on FMLA leave, your first steps should be to:
- Let the employee know that you know about this other work,
- Ask the employee for a job description for the other job, and
- Compare that job description to what the employee is restricted from doing according to his or her medical certification form.
If you can’t tell from the medical certification form exactly what the employee is prohibited from doing—for instance, if the form simply says “employee cannot work”—you can send a letter, through the employee, to his or her healthcare provider that includes the job description for both her job with you and her other job and asks the provider to recertify that the employee can do the other job but not her job with you.
Some employers have hired private investigators to watch and/or record employees suspected of moonlighting while on leave (or other suspected fraud), but what are the consequences of such surveillance? They are not always good.
Employees caught in the act have responded with claims of harassment, intimidation, and interference with FMLA rights. In addition, surveillance photos and tapes are admissible in an FMLA retaliation or interference lawsuit—regardless of whether they are great (or even good) for your case.
Unless you actually get some dirt on the employee, juries hate the idea of surveillance. They often conclude that you were “out to get” the employee and use it as evidence of interference or retaliation.
However, it may be worth the risk provided you have sufficient information to question the legitimacy of an employee’s absences. The first step is to make sure that you have a reasonable basis for your suspicions. For example, if an employee has physical restrictions that can be readily observed (such as the “can’t stand, twist, or bend” softball superstar), surveillance can be effective.
Once you have the evidence, you may choose to send it to the employee’s healthcare provider with a request to recertify the employee’s need for leave in light of his extracurricular activities.
In other situations, when you might be tempted to use surveillance, a compromise approach could be to write a letter to the employee’s healthcare provider describing what others have observed the employee doing at the softball field. Such a letter will not be nearly as powerful a potential trial exhibit as a surveillance tape, but it can serve a similar function in the recertification process in situations where you are not 100 percent sure the employee’s actions on the surveillance tape will offend a jury more than your having recorded them.
In the next installment, we’ll cover dealing with “subtle” FMLA abuse.