Imagine seeing a photo of your employee skiing when they said had to take off work because of a bad back. Or perhaps viewing a social media picture of them running a marathon when they claimed to have a broken foot.

So busted, you may think. But stop before you rush to judgment about a suspected abuse of the Family and Medical Leave Act (FMLA) and gather the facts.

The adage “honesty is the best policy” holds true both for employees who take FMLA leave, and for employers who use the honest belief defense to defend the termination of employees whom they believe have misused FMLA. The honest belief defense is gaining traction in courts, which have found that an employer cannot be found liable in an FMLA claim if they can show the reason for letting an employee go was based on an honest belief the employee was misusing FMLA leave — even if that belief was incorrect.

“It’s helpful to employers who’ve asserted it in court and who have had very good results with it,” said Gary Wheeler, a partner in the Jacksonville office of Constangy Brooks, Smith & Prophete LLP. “A lot of defenses come from regulations. This defense is a little unique in that it has been a judicially created defense, which means it’s been created by judges through case law.”

“I find that in cases where an employer conducted a full and complete investigation (of the alleged FLMA abuse) the employers tend to win before it goes to trial,” said Jeff Nowak, a shareholder with the employment and labor law firm Littler Mendelson P.C.

“In cases where there was a rush to judgment, the employees tend to win.”

Honest Belief in Action

Wheeler analyzed 35 federal, honest-belief defense cases that occurred prior to 2015 and found that the defense was successful for employers in 32 of the cases. “In the cases I read through the employees showed some pretty substantial moxie to take time off,” he said.

All but one of the successful cases were decided in the employer’s favor at the summary judgment phase, which occurs just before a case goes to trial. “That’s when an employer makes a motion for summary judgment and a judge decides that even if the facts were taken most favorably for the plaintiff, the employer would prevail,” Wheeler said.

In 25% of the cases he studied, Wheeler found that the employee who’d been accused of misusing FMLA had been reported by a co-worker. Beyond another person’s accusation, social media is frequently cited as the reason a co-worker approaches an employer with a complaint that another employee is misusing FMLA.

“Social media is the employer’s best tool when it comes to honest belief defense. That’s a reasonable basis to investigate an employee. However, the employer actually needs to perform some kind of investigation,” said Stacey Widlansky, vice president, North American Claims, Allied World Insurance Company.

“A lot of defenses come from regulations. This defense is a little unique in that it has been a judicially created defense, which means it’s been created by judges through case law.” — Gary Wheeler, partner, Constangy Brooks, Smith & Prophete LLP

Widlansky recommends seeking the advice of an employment attorney before conducting an investigation and during any meeting at which an employee may be terminated for misusing FMLA. That recommendation is echoed by Nowak, who notes that laws regarding such issues as whether an employer can view an employee’s social media pages vary by state. In Illinois, for instance, viewing an employee’s social media platforms is outlawed unless permission is expressed by the employee.

Investigations Must Follow the Law

An employer may do an investigation on their own which could include interviewing the person who made the report, talking to other co-workers and following up on other leads. But they need to be careful about pursuing it too far and violating an employee’s privacy.

“You can surveille someone in a public place, but you can’t stick a camera in their bedroom,” Walker said.

If an employer uses a third party investigator to investigate an employee, Walker advises they should hire someone who is licensed and reputable.

While seeing a photo on social media of an employee dancing on a cruise ship when they supposedly have a broken leg may seem like convincing evidence, it’s better for the employer to have other supporting documentation.

“The more documentation you have in your file, the better,” Widlansky said. “If they don’t give the employee a chance to explain, the court isn’t very friendly to that.”

Stopping FMLA Abuse

Of course, stopping FMLA abuse before it occurs is a step that is beneficial to both employers and to employees, particularly those who may be shouldering extra duties when their co-worker isn’t at work because they are misusing FMLA.

Gary Wheeler, partner, Constangy Brooks, Smith & Prophete LLP

“I find that employers often aren’t doing enough up front to set up a successful leave process for both them and their employees,” Nowak said.

“As the employer you have to right to know why your employee can’t come to work,” Nowak added. He also advises meeting with the person seeking leave in-person before granting it and asking these questions: What is the reason for the absence? What essential functions of the job can they not perform? Will the employee see a health care provider for the injury/illness? Have they previously taken leave for this condition? If so, when? When do they expect to return to work?

Employers should also require medical certification and to re-certify it when needed. An employer might want to re-certify if they notice a pattern of an employee taking off work on Mondays and Fridays in the summer or claiming an injured back when they receive a job assignment they don’t like.

Asking the employer’s doctor to re-certify the employee’s medical condition may result in getting a rubber stamp letter back from the doctor affirming the condition, but Nowak said he’s also seen such a communication lead to a doctor getting real with the employee. An employer needs to have the employee’s approval to contact their health care provider, but that also may lead to an employee revising their behavior.

“If an employee has a sense that you’re on to them they will increasingly curb their behavior,” Nowak said.

If the medical certification or re-certification is incomplete, employers should immediately contact employees to cure the deficiencies or explain any suspect information in the form.

Nowak also recommends discussing your expectations of the employee during leave, particularly if they are taking intermittent leave.

Managers should ensure that employees understand the call-in requirements such as when and who to call, certification and check-in obligations and those points should be summarized in a document that is provided to employees and signed by them.

“This document will be helpful down the road if you need to defend your actions, as it will establish that the employee was well aware of your expectations in taking FMLA leave,” Nowak said.

Another tip is to ask employees to complete a personal certification to confirm that they took off for the reason they’d stated. If the leave doesn’t mesh with their stated reason, the employer can discipline them for employment record falsification. &