Employer takes appropriate steps to win fraud case Kevin had been a good employee for many years performing tasks requiring repetitious motions while standing with outstretched arms. Unfortunately, he had a condition that caused joint deterioration, which eventually affected his shoulders. His job could exacerbate the condition. Kevin began having some attendance issues. While discussing his absenteeism, Kevin indicated that days missed were due to his should pain. His manager told him to check into the FMLA, which he did. His requested intermittent leave for flare-ups was approved. But soon thereafter, a suspicious leave pattern began to emerge. Kevin repeatedly combined his FMLA days with schedule days off and vacation days. The employer suspected that Kevin was abusing his FMLA leave, so it hired a private investigator to check on Kevin when he took leave a couple times – both on Tuesdays when his golf league played. Both times, the investigator recorded Kevin playing golf. After reviewing the surveillance videos, the employer determined that Kevin’s golf game appeared unimpaired, and he could swing a golf club without hesitation or discomfort. Kevin was notified of the suspected fraud and given a chance to explain his behavior. Kevin indicated that because his shoulders hurt every day, he was of the understanding these days were available for him to use at a time of his choosing, and that he often attached them to a weekend in order to receive the most time for relief from the repetitious work that created the pain. He also explained that golfing was less aggravating than his work. The employer determined that when flare-up prevented him from working, it should also prevent him from playing golf, and it fired Kevin for fraud and abuse of FMLA. Kevin sued, claiming essentially the same arguments he posed to the employer, in addition to claiming that the employer wanted to terminate him based on his condition and use of FMLA leave. The court found that, although Kevin established a prima facie case of FMLA retaliation, the employer argued a legitimate and nondiscriminatory reason for terminating him: fraud and abuse of FMLA leave. It indicated that the company approved Kevin’s request for intermittent FMLA leave for two reasons: (1) attending medical appointments and (2) taking three days off per month for a flare-up. Even crediting Kevin’s explanation of why it was ok for him to golf, or why he stacked his leave, Kevin did not take FMLA leave for flare-ups or medical appointments. He took FMLA leave because he was in constant pain and would take leave around vacations or weekends to give himself as much rest as possible. But occasional rest to alleviate low-level background pain is not what his FMLA leave was for. In this case, the employer took some correct steps. It kept an eye out for suspicious leave patterns. When one was identified, it did not make a knee-jerk decision. Instead, it investigated the situation. Then it gave Kevin a chance to explain the evidence of fraud. Only after determining that the facts supported its decision, did it terminate Kevin. LaBelle v. Cleveland Cliffs, Inc., Sixth Circuit Court of Appeals, No. 18-2444, September 13, 2019. This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.