How Not to Use Surveillance in an FMLA Situation

By Rudman Winchell Attorney Anne-Marie L. Storey, Esq.

A recent decision from the US District Court in Idaho provides some useful reminders of what can constitute interference and retaliation under the FMLA.

As our readers know, it is a violation of the federal FMLA to interfere with, restrain, or deny the exercise or attempted exercise of FMLA rights by an employee.  Courts have recognized that this includes “attaching negative consequences to the exercise of protected rights”, as that will “surely” tend to chill an employee’s willingness to exercise those rights. 

In this case, the employee was a police officer.  In the course of his duties, he was asked to and did investigate another employee’s behavior.  That other employee later became the Chief of the Department.   While that individual was Chief, the employee requested FMLA leave.  Although the leave was granted, the employee claimed the Department took actions that had the effect of deterring his exercise of his FMLA rights.  These actions included surveillance conducted by the Department which occurred while the employee was on his own property through a surveillance camera set up in his neighbor’s yard.   The reason given for the surveillance was that there were rumors that he was working in contravention to his medical certification.

In addition to the surveillance, the Department wrote a memo to the Chief detailing work he did not complete while on FMLA leave, threatened him with an internal affairs investigation, and  denied him a promotion.  These actions formed the basis of the retaliation claim.  The Department argued that the employee could not show retaliation because their actions were “generally legitimate and nondiscriminatory because they had to investigate whether [he] was fraudulently invoking his FMLA rights.”   

The Court denied summary judgment to the Department on both claims, concluding that there was a genuine issue of material fact as to whether the employer’s “invasive” behavior would chill his use of FMLA and whether there were negative consequences of the FMLA use.  In doing so, the Court specifically addressed the use of the surveillance to assess the employee’s medical condition and pointed out that if there were questions about the validity of his condition, the Department should have followed the procedure for a second medical opinion as permitted by the regulations.

While the decision should not be read to preclude the use of surveillance in any FMLA situation, it is a good reminder that such conduct has to be used sparingly and within the scope of the law and regulations in general.   It must also be done based on an objective assessment and not for the purpose of intimidating an employee attempting to take FMLA leave.   So, while it might be tempting to pull out your cell phone, ipad, GPS, or other electronic device, remember this case and be sure you have an objective and legitimate reason to do so.

 

Anne-Marie L. Storey, Attorney at Law, Rudman Winchell

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