FMLA - person not telling the truth

bhamilton

Has anyone ever had to deal with the following situation. We have an exempt lady who's mother has terminal cancer. She intermittently misses time to take her for treatments, etc. She called this morning and said she would not be in as her mother's white cell count was down and she needed IV's. I find out that she had another lady from work pick her up as she had problems with a boyfriend, and all the other details that go with it.

How did you handle this situation?

marc

How did you find out?

I would confront her with the information, assuming it is real enough to proceed, and charge her with the attendance violation.

morrisg

The courts have acted a bit strange with these type of cases not asking if you as an employer genuinely believed that the employee was fraudulently using FMLA. Instead the courts often focus on evaluating if the employ had a serious health condition, and if that were the case the employer is liable for failing to give the employee FMLA leave. Somewhat strange since the FMLA act does say an employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s job restoration . . . benefits.” 29 C.F.R. § 825.312(g). However, my legal resources have told me that the courts, rarely have invoked this provision. The employee and his or her medical professional may say that the activities were consistent with the purposes of the leave, i.e. sure they were seen in Wal-Mart shopping, but does that mean that they did not have a serious health condition.

You can and should adopt a policy that prohibits employees from doing certain activities while on FMLA leave. You should also consider using outside sources of investigation information, such as private investigators. I have done this with success, having an independent source record what they saw, much like one does in a fraudulently related worker’s compensation case.

bhamilton

The person who picked her up came to her supervisor upon return to work to tell him why she was late.

HR In NH

I haven't had this situation yet, but I would meet with the employee and tell her what you've learned.

If she admits to it, I would do a formal warning for falsifying information. I would also not excuse the absence, but at our company, one absence is not enough to warrant an attendance warning. I would also require recertification on a monthly basis from now on.

If she denies it, ask her why her coworker would state this and request that she provide documentation to substantiate her claim (statement from doctor's office, parking receipt, etc). If she does, then you'll need to go back to the other coworker with the same question & request. Obviously, one of them isn't telling the truth.

If she cannot substantiate her claim, but still denies her coworker helped her, I would do a formal counseling (documented in HR, but not in her personnel file). I would tell her that we will give her the benefit of the doubt this time, however, falsifying information and abusing FMLA will not be tolerated, so she needs to make sure she always follows our policies and is straightforward and honest in the future. It will at least serve as a warning to her, so she is unlikely to risk taking advantage again.

That leaves the other coworker, who is most likely telling the truth...I would also give her the benefit of the doubt this time.

LindaS

If the person who gave the woman the ride provided the information, I would definitely approach the woman with the information and ask her for her explanation. If she admits that this is what happened, I would assign whatever attendance points necessary as well as some type of disciplinary action regarding her falsification of information.

I had something similar happen once except I received the information before she used the FMLA excuse. I approached her on the situation and she admitted that she was planning on doing what she was accused of and I informed her that should she ever engage in this type of activity and is "caught", she would be immediately terminated. Needless to say she hasn't (to my knowledge) tried this again.

marc

Lying should be punishable all by itself. I know it is not practicle to do so, but here we have someone who abused FML, and lied to the ER.

According to Morris, the courts are protecting this level of abuse. Imagine my surprise. This sort of abuse cannot flourish without that sort of protection. The ambiguities built into the Act are helping to cause this as well.

Now we have a potentially clear cut case of abuse, if we can prove the other EEs statement, and several are willing to cut the EE a break. How much of this problem is contributed to by those of us who practice HR?

I am not without fault myself with respect to leaning in the EEs direction. When you step back a bit and look at it, it's a footstep placed on a slippery slope.

No real point, but love to rant.

stilldazed

1. If your attendance policy allows, you can ask for document verification from the worker, and hopefully you would be asking for it consistently, every time, every employee, every like situation. If your policy doesn't allow, consider adding it from this point forward.

2. Depending on where you are with your policy, treat the information as hearsay and proceed as you would with hearsay in this type situation--employee attendance. If you typically confront, then confront. If you don't, then don't.

My take on the situation is that the exempt status and FMLA are incidental. The issue is attendance. Exempt is a pay issue. You are not going to dock the worker's pay, so it has no bearing. The FMLA is incidental, so you get the proof you need or you don't, and you count the FMLA or you don't.