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Does An Employer Violate The FMLA By Performing Surveillance Of An Employee When It Suspects FMLA Abuse?

By on November 15, 2012 in FMLA with 0 Comments

FMLA abuse remains a problem for employers, leading to the question of whether an employer can obtain surveillance to make sure that the leave is taken for the reason requested.  In Vail v. Raybestos Products Company, 533 F.3d 904 (7th Cir. 2008), an Appeals Court provided very helpful guidance on this issue.

Diana Vail worked for Raybestos Products Company and was considered a good worker.  She worked the third shift from 10:45 at night until 6:45 the next morning.  From May through September 2005, she received more than 33 days of approved leave for chronic migraines.  She would call in prior to her evening shift to advise that she could not come in due to her migraine condition.

Vail’s husband owned a lawn-mowing business, and the busiest season was the summer.  Her husband had several cemetery clients whose lawns needed to be mowed during quiet times during the day.  The company began to notice a pattern in regard to Vail’s leave and decided to engage the services of an off-duty police sergeant to monitor Vail’s activities while on leave.

On October 6, 2005, Vail saw her physician, who prescribed a different blood pressure medication to treat her migraines.  The doctor told her not to work for 24 hours after first taking the medication.  Vail thereafter called in requesting leave.  That request was granted.  At 10:16 a.m. Vail called her physician and asked the physician to submit a note to Raybestos explaining why she had been absent from work.  Ten minutes later, Vail left her house and filled up two lawn mowers at a gas station, proceeding to mow the law at the New Richmond Cemetery, a client of her husband’s business.  Later on the same day she called in again to state that she could not work her shift due to her migraine condition.

When the company became aware of Vail’s work at the cemetery while she was seeking leave under the FMLA from her Raybestos job, it terminated her employment.  The union did not object.  Vail sued and argued that her termination interfered with her rights under the FMLA.

The Court said that to prove a claim for interference, the plaintiff must show that she took leave “for the intended purpose of the leave.” 29 U.S.C. 2614(a)(1).  The Court said, “[A]n employer has not violated the FMLA if it refused to reinstate the employee based on an ‘honest suspicion’ that she was abusing her leave.”  The Court concluded that Raybestos had clearly shown it had an honest suspicion based on the surveillance which it had obtained.  It therefore granted summary judgment to Raybestos and dismissed the suit.

It is important to note that the company already suspected that Vail was abusing her leave even before it hired the off-duty police officer.  The case does not stand for the proposition that employers can perform random surveillance on those who take FMLA leave.  Instead, the Court emphasized that there was an honest suspicion of FMLA abuse.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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