Have you ever had 65 employees seek FMLA at the same time with the same doctor’s notes?


On June 16, 2017, an employer issued furlough notices to employees at its West Virginia facility. Over the following weeks, 65 or so employees submitted forms requesting to take medical leave based on claimed minor soft-tissue injuries sustained while off duty. The forms were similar in content; all were signed by one of two chiropractors, and all called for a medical leave of eight weeks or more.

What would you do in that situation?

Suspecting benefits fraud, the employer charged the employees with violating its workplace rule against dishonesty and, following hearings, terminated their employment.

So, the employees sued and claimed that the company retaliated against them for seeking medical leave under the Family and Medical Leave Act (FMLA).

The plaintiffs were like, “You accused us of fraud, but you failed to prove it. So, your decision to terminate us on a ‘hunch’ means you had no legitimate basis. Therefore, it must have been a pretext for retaliation.”

The Fourth Circuit Court of Appeals disagreed.

Three judges in black robes and gavels concluded that even if the company’s investigator predetermined that the employees engaged in fraud, that finding does not make the conclusions pretextual. Indeed, if suspected dishonesty and fraud were the real reasons for pursuing the investigation and employee discipline — not to mention the clear pattern of doctor notes from the same two chiropractors —  the burden is on the plaintiffs to present some separate evidence that retaliating against them for requesting FMLA leave motivated the employer to terminate them. Besides, the court’s province is not to decide whether the reason was wise, fair, or even correct, so long as it was the genuine reason for the employment decision.

Even more importantly, the investigator did not decide to terminate the plaintiffs’ employment; another executive did after completion of the disciplinary process provided by the collective bargaining agreement, which involved hearings and appeals. He explained his rationale, which was consistent with the evidence. And the plaintiffs failed to put forward any evidence to suggest that this was not the actual reason for his decision.

In situations like this, it does not matter whether the employees actually engaged in dishonesty or fraud. A good-faith, vetted, reasonable suspicion is all it takes to terminate employment without violating the FMLA’s anti-retaliation provision.

“Doing What’s Right – Not Just What’s Legal”
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