Human Resources News & Insights

Who won this case: Real illness, or FMLA fraud?

Can an employer get in hot water for firing a worker on FMLA leave when it catches the employee in an activity specifically barred by his medical certification?  Read the dramatized version of this real-life case and see if you can determine the outcome.

The scene

“Tell me again why Stan Miller thinks he can sue us,” said VP Cathy Benson. “We fired him for blatant fraud.”

“I know,” said HR manager Lynn Rondo. “But the judge thinks the case should go to trial. Now we have to let it play out, unfortunately.”

“It said right in his doctor’s note that Stan’s condition prevents him from driving,” said Cathy. “Then we caught him on surveillance video driving a car. Seems pretty cut and dried to me.”

“You know everything I know, Cathy,” said Lynn. “Stan claimed he didn’t know driving was one of the restrictions on the doctor’s note supporting his FMLA request.”

“The guy goes to the trouble to get a doctor’s note saying he’s too sick to work and then he doesn’t read it?” asked Cathy. “Give me a break.”

“You’re preaching to the choir,” said Lynn.

“And Stan took FMLA leave at this exact same time four years ago,” said Cathy. “That can’t be a coincidence.”

“Yes, it’s the reason we started monitoring him in the first place,” said Lynn. “It does look suspicious. We’re hoping a judge thinks the same thing.”

Stan moved forward with his suit against the company.

Did the employer win?


The decision

No, the company lost. The judge didn’t find that the employee was guilty of FMLA fraud. He also didn’t think it was unusual for the employee to be unaware of all the physical restrictions outlined in the physician’s note supporting his FMLA request.

But two other factors basically decided the case:

  • The court found the decision to use surveillance was inappropriate, and
  • The four-year gap in taking FMLA leave wasn’t indicative of a pattern of abuse – and therefore wasn’t sufficient to warrant the employer’s suspicion.

Typically, courts will side with employers who, in good faith, believe FMLA fraud has occurred.

But in this case, the judge felt the company should have taken less drastic steps before resorting to video surveillance.

Analysis: Don’t jump to conclusions

No firm wants to be taken for a ride, but it’s important to do two things when you think you’re the victim of fraud:

  • Be on guard against excessive suspicion, and don’t hold the taking of FMLA leave against an employee, and
  • Avoid taking any extraordinary actions to discover if FMLA fraud is being committed.

Cite: Casseus v. Verizon New York, Inc.

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  1. The problem with your analysis is that is difficult to define “excessive” suspicion and “extraordinary” actions.

  2. PO'd HR Guy says:

    Tom – I agree. These are vague terms left to individual interpretation. I do think that a business has a right to protect itself against fraud and should take whatever steps necessary to do so. Common sense – which isn’t very common – should dictate what steps are reasonable. In this case, the comp claim 4 years ago thing was a stretch.

  3. And the next judge will side against the employer who didn’t use survaillance, expecting the employer to fully document the case against the employee before alleging fraud. Do the courts EVER rule for the employer? Further, the judge here said the employee is not responsible for knowing the rules. Then who is?

  4. Whattayamean says:

    So this guy’s doctor didn’t TELL him what his restrictions are? And he didn’t READ the restrictions? Bull! A prudent person would know his restrictions so as to not make his condition worse. Stan is either a liar or just plain stupid.

    The judge “also didn’t think it was unusual for the employee to be unaware of all the physical restrictions outlined in the physician’s note supporting his FMLA request.” Are you kidding me? I’ve NEVER had a comp case where the doctor did not list the restrictions and give a copy to the employee. As an employer, we demanded to know the restrictions BEFORE the employee returned to work so we would be sure they could be accommodated.

    “The court found the decision to use surveillance was inappropriate.” So when is it appropriate? What better way to prove the employee is perpetrating a fraud than to record him in the act of violating his restrictions?

    “The four-year gap in taking FMLA leave wasn’t indicative of a pattern of abuse.” Okay, I agree with this one. But I think the judge in this case really missed the mark. Like PO’d HR Guy says, common sense isn’t so common.

  5. I agree with judges decision, although the extra bit about the employee “not knowing” was ridiculous.

  6. You hr people are ridiculous you act as if you’re part owner of the companies you work for. Corporations feel like they can fire any body for any reason if real abuse is happening then fine fire them, but four years in between fmla claims being a pattern, gimme a break. If it was up to corporations any absent would be grounds for termination

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