United States: FMLA Fraud Finding Leads To Employer Court Victory

Last Updated: November 10 2016
Article by Richard R. Meneghello

3 Things You Need To Know About Latest Decision

An employer recently claimed a significant victory in a case brought by a former employee who believed he had been unfairly targeted for termination because of his Family and Medical Leave Act (FMLA) leave request. The federal court of appeals decision is significant because it provides support for those employers who wish to root out fraudulent abuse of FMLA leave from their workplaces, offering a blueprint for how to navigate such a situation.

Here are three things you need to know about this important decision:

1. Good Facts Make Good Law

If the old saying "bad facts make bad law" is true, then this case is proof that the converse is also true. By attempting to maintain a FMLA retaliation lawsuit despite engaging in questionable behavior, the ex-employee in this case helped create good law for employers everywhere. 

Masoud Sharif was a customer service agent for United Airlines. In 2009, he was diagnosed with anxiety disorder and requested intermittent FMLA leave from United to be taken when he suffered panic attacks. Over the next several years, Sharif requested and United granted over 50 days of intermittent FMLA leave.

In March 2014, Sharif traveled to South Africa for a long vacation, using accumulated personal time off to cover almost his three-week absence from work. However, he was unable to successfully bid for vacation leave to cover a scheduled shift on March 30, right in the middle of the vacation, and was unable to find another employee who would agree to swap shifts. At 7:00 a.m. Cape Town time – which was 1:00 a.m. Eastern time – on that day, he called into United Airlines and left a message for his supervisors that he would be taking intermittent FMLA leave to cover that shift because of a panic attack. He then continued with his vacation for another week or so, which included a final stop in Milan, Italy to visit family.

United sensed something was fishy about his intermittent leave request given that it happened to coincide with the one, single day where he was scheduled to work in the midst of an extensive vacation. When he returned to work, a Human Resources representative interviewed Sharif (with a manager and a union representative present) and asked him about the March 30 absence. According to United, Sharif sat in silence for a period of minutes and then provided a series of inconsistent answers.

At first he claimed that he did not know that he was scheduled to work at all on March 30, but then was unable to explain he felt the need to call in on that specific day. He then claimed that he didn't remember calling in sick that morning. He then said that he had been trying to fly home on standby to make it back to the U.S. for his shift but that all of the flights were full. That story evolved to include Sharif saying that the failure to find a standby flight led to a panic attack, leading to his FMLA request, which he now remembered making.

United management didn't buy his story, and notified him that it intended to terminate his employment for fraudulently taking FMLA leave and for making dishonest statements during the investigation. At the advice of his union, Sharif resigned under threat of termination. He then filed the FMLA retaliation lawsuit in a Virginia federal court, which eventually dismissed his case. He appealed that dismissal to the 4th Circuit Court of Appeals (covering Virginia, North Carolina, South Carolina, and West Virginia), which upheld the dismissal in an October 31, 2016 opinion.

2. Employer Conducted A Smart Investigation

The court gave Sharif every opportunity for Sharif to present evidence or arguments that would support his position, but in the end, it was more impressed with the evidence presented by the employer. That evidence demonstrated that the employer took its time, conducted a swift but thorough investigation, considered all possibilities, and then arrived at a reasonable conclusion based on objective information.

United proved that it conducted a methodical and thorough investigation. It pointed out that it reviewed Sharif's work calendar and the time and place of his phone call, among other things, in an attempt to understand his story. The court also noted that United examined Sharif's story about attempting to fly home on a standby flight, but was unable to locate any evidence that a standby request was made. Also, United did not immediately terminate Sharif's employment, instead taking sufficient time to consider all of his explanations. It even allowed him to present a written version of his story when he claimed that his anxiety disorder contributed to his less-then cogent explanation on the day of the investigative interview.

Further, the court noted that United showed no signs of bias against employees who took FMLA leave. In fact, in the two years prior to the investigation, the employer approved 56 days' worth of intermittent leave requested by Sharif, never once rejecting his requests. "This is not the record of a company that is historically hostile to FMLA leave in any discernable way," the court said.

Finally, the court was impressed with the fact that United presented a consistent explanation for its investigation and the termination notification at every step along the way, from the time of the initial investigation, through the union process, in written correspondence to Sharif, and during the subsequent litigation. "Unlike Sharif's shifting narrative," the court stated, "the company's explanation for its action has remained a consistent one." The court concluded that misrepresentation and disability fraud were serious issues that could justify termination. It summed up its decision when it said: "While a company may not deny valid requests for leave, and an employer cannot use allegations of dishonesty as a pretext for subsequent retaliation, it is equally important to prevent the FMLA from being abused."

3. Employers Can Question Intermittent Leave When Appropriate

Employers often say that intermittent leave requests are among the most challenging problems they face. However, there are several strategies available to employers to combat intermittent leave abuse. One of the most effective, as demonstrated here, includes following up on changed or suspicious circumstances.

If the circumstances described by the existing FMLA certification have changed, you may seek recertification more frequently than 30 days. The same is true if you receive information that casts doubt on the employee's stated reason for the absence or on the continuing validity of the certification. This could include a different frequency or duration of absences, or increased severity or complications from the illness. You are permitted to provide information to the health care provider about the employee's absence pattern and ask if the absences are consistent with the health condition.

You may also receive information about employee activities during FMLA leave that appear inconsistent with the health condition (for example, an employee playing in a softball game while on leave for knee surgery). A note of caution, however – if you receive information from coworkers about an employee's actions while on leave, you must be certain the information they receive is credible and that the coworker has no axe to grind against the person on leave. Always attempt to independently verify information received from coworkers before taking action or requesting recertification for suspicious circumstances.

There are several other strategies available for dealing with intermittent leave abuse; a good summary can be found here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Richard R. Meneghello
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.