• Employer May Terminate Employee for FMLA Fraud and Dishonesty
  • December 19, 2016
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • The U.S. Court of Appeals for the 4th Circuit upheld the termination of an employee who was found to have lied about his use of Family and Medical Leave Act leave during his vacation and during the subsequent investigation.

    Background. In Sharif v. United Airlines, Inc., the employee had taken intermittent leave for panic attacks over five years of employment. The employee and his wife, who also worked for the company, took vacation from March 16-April 4, although the employee was scheduled to work a shift on March 30. He and his wife traveled to South Africa. At 1:00 a.m. on March 30, the employee left a voice mail message that he was taking FMLA leave that day. He and his wife then flew to Italy on March 31, returning home on April 3.

    Human Resources was notified of these circumstances. During the investigation, the employee provided various inconsistent explanations for his leave. He was informed that he would be terminated for fraudulent use of FMLA and dishonesty during the investigation. Instead, he retired and sued for violation of the FMLA. The trial court rejected his claims and granted summary judgment for the company.

    The Court’s Ruling. On appeal, the 4th Circuit affirmed the trial court’s ruling. The 4th Circuit found that there was undisputed evidence of FMLA fraud, in that the employee left for an overseas vacation despite being scheduled to work, “conveniently” called out from his scheduled shift 12 hours after the last plane left that would have allowed him to return to work, waited until the middle of the night to call when no one was present to take the call, and went to Italy afterwards. In addition, the employee provided shifting explanations about his attempts to return home, and failed to produce ticket stubs or other documentation that would substantiate his story or stories. Thus, the 4th Circuit found that the company’s belief about the employee’s fraud and dishonesty was “logical.”

    The 4th Circuit also rejected the employee’s claim that the report to HR about his FMLA leave was retaliatory for using FMLA leave. Rather, the 4th Circuit held that the report to HR was “straightforward factual information” which is not, without more, evidence of a discriminatory animus.

    The employee also argued that had he simply missed work on March 30, he would not have been fired, and thus the severity of the punishment - his proposed termination - was evidence of pretext. As the 4th Circuit noted, however, he was not being terminated for missing work, but for dishonesty and fraud, offenses for which “discharge is not disproportionate.”

    Significance for Employers. Many employees - and some employers - seem to believe that their use of FMLA insulates them from any employment consequences. While it is true that employers cannot take adverse action because of an employee’s legitimate use of FMLA, it is also true that employers can take adverse action where it has a reasonable belief that the employee has engaged in fraud with regard to the FMLA leave. As the 4th Circuit stated, “While a company may not deny valid request for [FMLA] 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.” (Emphasis added).