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FMLA Suit: Was Surveillance Justified or Retaliation


Just because the Family and Medical Leave Act (FMLA) gives employers the ability to initiate surveillance on employees they suspect of abusing their leave, it does not mean you should take such a drastic step.

As a recent FMLA lawsuit — Walker v. City of Pocatello (Id.) — shows, doing so can come back to haunt employers.

John Walker, an officer with the Pocatello Police Department, filed an FMLA interference and retaliation lawsuit against his employer. Normally, FMLA interference and retaliation lawsuits stem from denied leave or terminations related to the leave. But not in this case.

Here, Walker was neither fired nor disciplined and all of his requested FMLA was approved. But, at the behest of his supervisor, Scott Marchand, Walker's employer did conduct surveillance on him while he was on leave.

In the lawsuit, Walker claimed that not only was the surveillance unwarranted, it was also retaliation for Walker's previous investigation into a complaint that Marchand and his co-workers were "accessing adult content on their work computers." Because of these factors, the City had, according to Walker, interfered with his FMLA rights and retaliated against him for taking leave in the first place.

Leave does not need to be denied

The company tried to argue the FMLA claims were essentially invalid because Walker was granted full FMLA leave. Plus, the company added, it had every right to issue surveillance on Walker to prove rumors about FMLA abuse.

But Walker's attorney claimed FMLA leave did not need to be denied for an individual's rights to be interfered with. And, the attorney claimed, because there was no objective evidence to warrant his surveillance, there was reason to believe the whole thing stemmed from the complaint Walker made about his supervisor years earlier — i.e. the investigation into "accessing adult content" at work.

The court also had concerns about the company's surveillance:

Walker contends that Defendants engaged in actions which had the effect of deterring the exercise of FMLA rights. Specifically, when defendants had doubt about the validity of Walker's medical condition, they did not simply request another medical opinion as contemplated by the regulations. Instead, they tracked Walker, and surveilled his activities on his own property by setting up a police surveillance camera on his neighbor's fields. Although one must generally prove denial of FMLA benefits as part of an FMLA interference claim, the Ninth Circuit has held that "the statutory and regulatory language of FMLA makes clear that where an employee is subjected to negative consequences . . . simply because he has used FMLA leave, the employer has interfered with the employee's FMLA rights."

Because of this, there was reason to believe the company's surveillance may "chill" his use of FMLA or result in other negative consequences, the court ruled.

Second opinion, objective basis are key tools

The court's ruling highlights a key step to take before resorting to surveillance. If you suspect someone is abusing FMLA, requesting a second opinion is a proven way to put your doubts to rest.

But it may not be your only option.

FMLA Insights founder and attorney Jeff Nowak points out that a second opinion is not always needed if you have an objective basis. Here are a few reasons Nowak cites to prove you have an objective basis:

  • inconsistent reasons for leave
  • significant changes in frequency or duration of the absences, such that leave appears to be suspicious
  • reliable information you receive from the employee's co-workers about his misuse of leave, or
  • suspicious patterns of absences over a short or longer period of time

Bottom line: The company in this case did not do nearly enough to prove its need for surveillance.

Posted In: Family and Medical Leave Act (FMLA)

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