Rejects Employee's FMLA Interference Claim

A federal appellate court recently dismissed a lawsuit brought by an employee who was working at her husband's lawn-mowing business while on intermittent medical leave from her employer. According to the Seventh Circuit Court of Appeals, the employer did not violate the Family and Medical Leave Act (FMLA) by terminating the employee because it had an "honest suspicion" that she was misusing her FMLA leave. Vail v. Raybestos Products Company, No. 07-3621, Seventh Circuit Court of Appeals (July 21, 2008).

Factual Background

Diana Vail was employed by Raybestos Products Company (RPC), a car part manufacturer, where she worked the third shift (which began at 10:45 p.m. and ended at 6:45 a.m.). Because Vail suffered from migraines, her supervisors allowed her to use intermittent medical leave on a regular basis. Given that she did not have advance notice of when she would get a migraine, Vail would call her supervisor just prior to her shift if she needed time off.

During the summer of 2005, Vail's supervisors began to suspect that her requests for leave were not genuine and that she was instead working for her husband's lawn-mowing business. RPC then hired Sergeant Largent of the Crawfordsville (IN) Police Department to monitor Vail's activities.

On the morning of October 6, 2005, Vail's doctor prescribed a new medication to treat her migraines and instructed her not to work for 24 hours after first taking the medication. Vail called prior to her shift later that day to request leave (which RPC granted).

The next morning, at approximately 10:30 a.m., Sergeant Largent witnessed Vail filling up two lawn mowers at a nearby gas station and taking the mowers to a local cemetery where she and another person mowed the lawn. Sergeant Largent immediately notified RPC of these events. That evening, Vail again requested leave for her next shift due to the onset of a migraine.

The next time Vail reported to work, her manager informed her that she was being terminated. Shortly thereafter, Vail filed a lawsuit alleging that the company terminated her employment in violation of the FMLA. The trial judge granted RPC's motion for summary judgment, and Vail appealed this decision to the Seventh Circuit Court of Appeals.

Legal Analysis

The issue in this case was whether RPC interfered with Vail's FMLA rights by firing her. The Seventh Circuit noted that to successfully bring a claim for interference, Vail must show that she was an eligible employee who took leave "for the intended purpose of the leave," and that the employer denied a benefit as a result of that leave.

An employer can defeat such a claim by showing that the employee did not take leave for the "intended purpose." According to the Seventh Circuit's interpretation, an employer can refuse to reinstate an employee without violating the FMLA based on an "honest suspicion" that he or she was abusing leave.

The court ruled that RPC had an "honest suspicion" that Vail was abusing leave. According to the Seventh Circuit, RPC's suspicion was later reinforced when the company received the information gathered by Sergeant Largent. The Seventh Circuit noted that while using an off-duty police officer was not "preferred employer behavior," the information gleaned from Sergeant Largent was sufficient to give RPC an "honest suspicion" that Vail was not taking leave for its intended purpose. As a result, the trial judge's decision to dismiss her suit was upheld.

Practical Impact

According to Matthew Effland, a shareholder in Ogletree Deakins' Indianapolis office: "The court was very careful not to give a blank check to companies to arbitrarily dig into employees' personal lives. Surveillance should be a last resort, not a first reaction. At the same time, however, the opinion made it clear that employers do not have to ignore evidence of fraud just because a worker is certified for FMLA leave. If a company has an honest suspicion that an employee is engaging in fraud, it can act on that suspicion without violating the law. A company is therefore free to carefully and appropriately investigate suspected FMLA abuse without worrying that such efforts will automatically result in liability