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A growing number of employers are hiring private investigators to spy on employees suspected of taking leave dishonestly under the Family Medical Leave Act. Management-side attorneys claim that FMLA abuses have gotten out of hand, and employers need a tool — in this case surveillance — to catch malingerers using FMLA improperly. And it’s been pretty successful, they say, noting that private investigators in recent years have helped catch employees bowling, doing yard work or holding second jobs when they’re supposed to be out on sick leave. Employee-rights attorneys, meanwhile, view surveillance as harassment, intimidation and an interference with a worker’s right to take FMLA leave. It also has a chilling effect on other employees who may not take the leave for fear of being spied on. Both sides, however, note that the courts appear to be siding with employers. Most recently, the Seventh U.S. Circuit Court of Appeals upheld an employer’s right to spy on a woman suspected of lying to get FMLA leave, holding that the surveillance provided the employer with an “honest suspicion” that she was using the FMLA improperly. She claimed she suffered from migraines, but was caught on camera mowing lawns as a second job, according to court documents. Vail v. Raybestos, No. 07-3621 (7th Cir.). “I think this ruling says – at its heart – that somebody who is an employee and wants to use the FMLA as a get-out-of-work-free card better beware,” says Matthew Effland of Ogletree, Deakins, Nash, Smoak & Stewart’s Indianapolis office, who represented the employer in the Seventh Circuit case. Effland says the employer’s use of surveillance “wasn’t a knee-jerk first reaction,” but rather a final measure used to investigate its suspicions. He says he has other clients who also use surveillance to investigate FMLA abuses. “It’s certainly becoming more prevalent,” he says. “Employers are trying to do whatever they can to get a handle on the extensive amount of intermittent leave that is being used.” Crying Foul Employee-rights attorneys, meanwhile, are crying foul, saying employers are going too far in hiring PIs to spy on people for taking leave that they’re entitled to take. “It was never my understanding that the FMLA requires you to be dead or in bed to be on FMLA leave,” says Richard Schall of Schall & Barasch in Moorestown, who views surveillance of employees taking FMLA leave “a total perversion of the FMLA.” “If taking care of yourself means that you continue to shop, continue to mow your lawn, to cook, wash your windows, drive your car – none of those things seem to be relevant,” Schall says. “I just think it’s preposterous – the investigation and surveillance of someone doing normal activities while they’re out on FMLA leave – I think it’s preposterous.” Chicago employee-rights attorney Charles Siedlecki, who has a current FMLA lawsuit pending against AT&T Inc. involving surveillance, agreed. In his case, a woman claims she was followed around to make sure that she was taking FMLA leave properly and that she was forced to quit her job after being denied additional FMLA leave for a medical reason. Butler v. AT&T, No. 06cv5400 (N.D. Ill.). “It’s a form of intimidation,” Siedlecki says. “The goal of this is to chill employees from taking FMLA.” He added, “I don’t think these people should have to be afraid that if they leave their house, that if they run out to get a pizza, that they’re going to be fired.” Marsha Goodman of Chicago’s Mayer Brown, who is representing AT&T, was unavailable for comment. For Ronald E. Weldy, who represented the plaintiff in the Seventh Circuit case, the problem with surveillance of employees taking FMLA leave is if the surveillance is being done during the employee’s work shift, or during their free time. Weldy, of Weldy & Associates in Indianapolis, says that his client was not working a second job while out on intermittent sick leave for migraines, and that she was being watched during hours when it wasn’t her work shift. She worked a night shift, he says, but was videotaped mowing lawns for her husband’s business in the morning. “It wasn’t acceptable in my case because who cares what she’s doing if she’s not under FMLA leave . . . .She hadn’t done squat,” Weldy says. “They had someone sitting outside of her house waiting for her to go out and mow during the day.” A Liability Issue? Employers could also open themselves up to more lawsuits if they spy on employees who might claim their FMLA rights are being interfered with, warned Patricia Barasch, vice president of the National Employment Lawyers Association. “The fact that employers are out there doing that means that there are legal lawsuits to be brought on behalf of employees who are victims of this practice,” Barasch says. “We certainly have problems with [surveillance] because I don’t think that that’s what the purpose of the FMLA was.” Barasch says once an employee seeks FMLA leave and provides documentation needed to get it, “It’s not for the employer to second-guess that, and that’s exactly what they’re doing when they’re out there investigating them,” she says. “They’re interfering with their FMLA rights.” Management-side attorneys adamantly disagree, saying employers are within their legal rights to use surveillance to combat FMLA abuse. “Employers feel like they’ve absolutely lost control over their work force when folks say, ‘hey, I’ve got a migraine, I’ve got to head out.’ They’re looking for strategies, and surveillance is one of them,” says Merrily Archer of the Denver office of Atlanta’s Fisher & Phillips. “I can’t tell you the number of calls I’ve fielded from employers who are concerned about this.” Archer says that by using surveillance, employers are sending a stern message to workers seeking FMLA leave: “We’re not just going to take your word for it, you will be surveilled.” David Ritter, of Chicago’s Neal Gerber & Eisenberg, also supports employers using surveillance to investigate FMLA abuse. In recent years, he says, he’s seen employers successfully use private investigators to catch FMLA abusers, including one worker who was caught bowling, another doing yard work. “It’s not something you want to do all the time,” Ritter says. “But when you have a real suspicion, it’s warranted.” Paul Lopez, a management-side attorney at Fort Lauderdale, Fla.’s Tripp Scott, also favors hiring private investigators to spy on suspicious FMLA takers. He says it’s no different than defendants in personal injury cases spying on plaintiffs who are claiming horrible injuries. “The defendants will surveil the plaintiffs. And if someone claims that they have a serious disability, it’s highly relevant if that person is playing golf,” Lopez says. But employers shouldn’t jump to conclusions just because an FMLA-taker is doing something “other than sitting on a couch,” warned attorney Mark Toth, who runs an employment law blog for employers and human resource professionals. Toth says if an employee is spotted at the mall, doing aerobics or even building a porch, don’t assume it’s grounds for discipline unless the activity clearly violates the doctor’s restrictions. Even then, he added, make sure you have all the facts and hear the employee out before taking action. “It really comes down to: Don’t assume anything,” says Toth, the chief legal officer for Manpower North America. “There is more than meets the eye. And if you’re an employer, act once you have the facts, but not before.” The Seventh Circuit is far from the only court to address the issue. The Sixth Circuit also has upheld the right of an employer to videotape an employee suspected of abusing FMLA leave. The 2006 decision involved an employee who was videotaped doing yard work, and boarding a plane for Las Vegas, when he was supposed to be out on a knee injury. The employee was fired, but he then sued the company, claiming his FMLA rights were violated. The court sided with the employer. Crouch v. Whirlpool, 2006 U.S. Lexis 9876. In Ohio, the videotaping of an employee allegedly malingering is playing a key role in a pending retaliation lawsuit against Honda Motor Co., which videotaped an FMLA leave taker building a porch on his house, then fired him, claiming he abused his leave. The employee, who took leave for a concussion, filed an FMLA retaliation lawsuit, claiming he wasn’t malingering but rather waiting for Honda’s doctor to clear him before coming back to work. On June 12, the court sided with the employee and sent the case to a jury, which will decide whether the employee was just waiting for a doctor’s orders or if he lied about his illness to fix up his house. Wiemer v. Honda, No. 2:06-cv-00844 (S.D. Ohio).

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