August 6, 2019
Authored by: Christy Phanthavong
Employers are not obligated to tolerate employee misuse of FMLA leave. Examples abound in which an employer learns – often through an employee’s social media posts or through information from an employee’s co-workers – that an employee on intermittent FMLA leave has been having a good time while absent from work, such as taking a trip to the beach (or Las Vegas, Cancun, ….), playing golf, going fishing, etc. In those situations, when an employer takes action to discipline or terminate the employee after conducting a reasonable investigation and reaching an honest belief of FMLA fraud, the employer will often successfully defeat a resulting FMLA retaliation claim (and, often an FMLA interference claim as well).
The case of Meyer v. Town of Wake Forest, No. 5:16-CV-348-FL, 2018 WL 4689447 (E.D. N.C. Sept. 28, 2018), however, provides an example of when an employee going to the beach during FMLA leave may not provide good grounds for an “honest belief” of FMLA fraud. In Meyer, the employee was approved for intermittent FMLA leave both to care for his wife who was recovering from childbirth and to bond with his newborn son. A co-worker reported to the employer that, while on approved FMLA leave, the employee had been to the beach with his family, and that he also planned to go with them to the state fair. Based on the employee’s subsequent admission that he had engaged in these activities and that he had recorded his time as sick time under the employer’s