Friday, August 22, 2008

I Spy: FMLA Claims and Employer Surveillance

Camera The National Law Journal has a story on employers' increasing use of surveillance against employees who are out on FMLA leave.  According to the NLJ:

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 said, 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 7th 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.). . . .

Employers should certainly be able to raise reasonable suspicions of abuse, but there's a dangerous point  that risks crossing into retaliation or intimidation.  This tensions shows some gaps in the legal landscape.  Although the NLRA prohibits much surveillance of collective activity, employees are generally left without privacy rights.  These FMLA issues are one of many by-products of that fact.

Hat Tip:  Katie Tolliver


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Is this any different than investigating workers' comp abuse as employers have always done? It's a sad fact that some employees cheat on WC benefits. No doubt some do on FMLA leave as well. Cheating imposes costs on other employees as well as on employers. Otherwise legal surveillance, like watching employees in public places, as the NLJ article's examples illustrate, is a simple, noninvasive way to determine whether the employee is telling the truth or lying.

Posted by: Dennis Nolan | Aug 22, 2008 8:36:06 PM

I agree with Dennis, at least to the extent that there is a long history of this in workers' comp cases.

Now, there are obviously different types of "surveillance," some of which probably don't raise legal or even serious ethical problems and some which probably do.

Posted by: Joseph Slater | Aug 23, 2008 7:49:21 AM

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