Checking to see that an employee is using Family and Medical Leave Act (FMLA) leave properly doesn’t necessarily amount to illegal interference with the worker’s rights, a federal appeals court made clear in a recent ruling.
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In FOP v. Camden, No. 15-1963 (3rd Cir. Nov. 17, 2016), the 3rd U.S. Circuit Court of Appeals considered a case involving a police officer who took FMLA leave to care for his mother. Internal affairs checked on him at home but that one-time visit didn’t amount to interference with his FMLA rights, the court concluded.
Facts of the Case
In a larger case filed by the Fraternal Order of Police against the City of Camden, New Jersey, one officer, Charles J. Holland, alleged that the department interfered with his FMLA rights.
Holland had objected to a department policy and, in retaliation, the employer transferred him to a less desirable position and investigated his use of FMLA leave, he said. Representatives from the department’s internal affairs office visited him at home. The department also told him he was using too much sick time, despite the fact that he was approved for intermittent leave, he said.
The U.S. District Court for the District of New Jersey, however, said Holland had not shown that he was harmed by the department’s actions, as is required for an interference claim. “To prevail [on an FMLA interference claim], an employee must prove, as a threshold matter, that the employer violated [the law] by interfering with, restraining, or denying his or her exercise of FMLA rights. Even then, [it] provides no relief unless the employee has been prejudiced by the violation,” the court said, quoting the U.S. Supreme Court in Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002).
Appeals Court Weighs In
The FOP appealed, and Holland argued that U.S. Department of Labor (DOL) regulations make clear that denying leave isn’t the only way an employer can interfere with an employee’s FMLA rights; discouraging an employee from taking leave also can be interference, he said, citing 29 C.F.R. §825.220(b).
A reasonable person could conclude that the department attempted to discourage him from using leave by threatening discipline for his use of sick time and visiting him at home, Holland said.
The city, in response, argued that the threats of discipline were the result of internal miscommunication. The branch questioning his time off did not know that the days had been approved under the FMLA, it said. Moreover, internal affairs officials only visited him once, which the city argued was “minimally intrusive.” Neither of these actions would deter a reasonable person from exercising his or her rights, it said.
The appeals court agreed. “Although we are sympathetic to Officer Holland’s family situation, ‘there is no right in the FMLA to be ‘left alone,’’ it said, citing its own precedent. “Camden’s actions may have been insensitive, but they were not beyond the limitations the FMLA places on employers attempting to manage their workplaces.”
Holland also never showed that he was injured by the city’s actions, the court said. The FMLA only provides relief when an employee has been “prejudiced” by a violation, it explained. Violations must occur in tandem with actual harm, the court said, and Holland did not allege that he was actually denied FMLA leave. “In fact, he concedes that he was able to take time off to care for his mother,” the court said, upholding the lower court’s ruling.
Employer Takeaway
Surveillance can be a useful tool in combating FMLA abuse, but employers must use it carefully. During the Society for Human Resource Management’s annual conference earlier this year, one speaker told attendees that surveillance should be a last resort.
An employer may use surveillance when it suspects an employee is abusing FMLA leave but it should only do so after it has exhausted recertification options and other methods, said Steven Johnson, Human Resources coordinator for the Health & Hospital Corporation of Marion County, Indiana. And it never should be conducted by the employee’s supervisor, he added. It should be done by Human Resources or a third party.
For other options, see 15 Tactics to Prevent FMLA Abuse.
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Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for