Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Monday, July 28, 2008

Clandestine Surveillance Of Employee Defeats FMLA Claim

7thcirseal Vail v. Raybestos Products, ___F.3d___ (7th Cir. July 27, 2008), is an important FMLA decision.

An employer's off-duty police officer clandestine surveillance provided the employer with an honest suspicion that an employee was not using her medical laeve for the intended purpose of the leave due to her migraine headaches. Thus, the plaintiff employee's claim that the employer interfered with her FMLA rights by terminating her for abuse of leave was precluded. The officer saw the employee working for her husband's lawn-mowing business the next moring after she had taken medical leave for her evening shift.  As the court reasoned:

We have interpreted this to mean that an employer has not violated the FMLA if it
refused to reinstate the employee based on an “honest
suspicion” that the she was abusing her leave. Id.; Kariotis,
131 F.3d 680-81.
Here, Raybestos has clearly made this showing. Though
the use of an off-duty police officer to follow an employee
on leave may not be preferred employer behavior,
employers have certainly gone further than Raybestos.
See, e.g., Kariotis, 131 F.3d at 681 (hiring private investigators
to videotape employee). In any event, the information
gleaned from Sergeant Largent’s reconnaissance
was sufficient to give Raybestos an “honest suspicion”
that Vail was not using her leave “for the intended purpose.”
Vail had taken medical leave for her October 6,
2005 evening shift. The next morning, the off-duty police
officer saw Vail working for her husband’s lawn-mowing
business. Raybestos received this information after it
already suspected that Vail was gaming her leave in order
to work for her husband’s business. So when it heard
information consistent with what they suspected she
was doing while on leave, Raybestos decided to terminate
her. Vail’s call later that day—after a day of mowing
under Sergeant Largent’s gaze—stoked this suspicion.
As a result of this “honest suspicion,” Raybestos
did not violate Vail’s rights under the FMLA.

This decision appears to have been a "no brainer" and I am surprised that it made its way to the 7th Circuit.

Mitchell H. Rubinstein

http://lawprofessors.typepad.com/adjunctprofs/2008/07/employers-hones.html

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Comments

Isnt't the use of private investigators common with insurance companies also? I've heard of insurance companies sending out investigators to follow people who were claiming an injury and inability to work.

Posted by: Dennis | Jul 29, 2008 6:54:11 AM

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