Postings can be evidence of fraud

Some people simply can’t stop themselves from posting personal information on social media. More and more, people doing so are setting their own FMLA traps.

Case in point

A company issued a “Use Family Medical Leave Appropriately” policy (nice idea), and employees were made aware of it. Elmer, an employee, was diagnosed with some health issues which caused him to take FMLA leave intermittently. He was never denied any of his requested leave.

At one point, Elmer went to urgent care due to a flare up of his condition. The health care provider took him off work for three days. He called in as appropriate.

While all this seemed to be fine, Elmer had a preplanned boating trip with Vincent, one of his coworkers, on one of those days. Despite not feeling well the night before the trip (he was scheduled to work the graveyard shift), Elmer did take the trip during the next day, after his scheduled shift was over. While he fished, one of his coworkers took a video on the boat, which he posted that afternoon. In the video, Elmer was captured saying “I’m not out here.” That night, before his next shift began, Elmer called in again. He did, however, return to work for his subsequent shift.

The day after Elmer returned to work, Vincent showed the video to Johann, Elmer’s supervisor. Johann remembered that Elmer previously requested vacation for the days he took leave, but they were denied. Johann felt he had enough evidence to charge Elmer with dishonesty for improper FMLA use. During the investigation, Elmer did not deny going fishing, but initially stated he did not recall whether it was him in the video. He later admitted it was him. He was terminated, and he sued.

Elmer tried to argue that he did not engage in any activity on the fishing trip that he was restricted from. He also argued that the trip was between working shifts. The employer held to its argument that Elmer’s termination was due to fraud.

The court agreed with the employer, indicating that Elmer’s taking of FMLA leave was not a negative factor in his termination. His dishonesty was.

Employers, don’t be afraid to use such information to support an FMLA fraud argument.

Also, while it might be tempting in such a situation to take a “gotcha” stance against the employee, and make things worse for someone like Elmer, a little kindness, grace, and dignity can go a long way. Take the high road when investigating, and don’t be uncaring. Also, don’t forget to document all steps.

Dunger v. Union Pacific Railroad Company, et al., C.D. Calif., No. 18-cv-6374, June 3, 2019.