Imagine this scenario:  One of your employees is taking leave under the FMLA. You suspect the employee has misrepresented the state of his or her condition to fraudulently obtain protection under the FMLA and is really using the time off for personal reasons unrelated to any illness or injury. In fact, several of the employee’s co-workers have reported to you that they have observed the employee out shopping on days when he or she had supposedly used FMLA-protected leave. They’ve also told you that some of the employee’s Facebook posts and photos portray activity which seems inconsistent with their alleged illness or injury.  Since the FMLA prohibits employers from interfering with an employee’s FMLA rights and from retaliating against employees who exercise their rights to leave, there’s nothing you can do unless you care to find yourself in court, right? 

Wrong.  One of the more effective shields that an employer has against FMLA liability is the honest belief rule.  This doctrine – which arises from case law rather than anything explicitly from the FMLA or its regulations themselves – has developed primarily in the Sixth Circuit, where both Kentucky and Ohio sit, and the Seventh Circuit. The doctrine provides that where an employee is terminated because the employer honestly believed that the employee was not using the leave period for its intended purpose, an FMLA claim will not lie.  In most of these cases, the employer received information from either eyewitness accounts from co-workers, social media posts, or surveillance – any of which led it to honestly believe that an employee was abusing his or her leave for an improper purpose. 

In order to successfully establish the honest belief defense, an employer can’t rely on just a “hunch” that the employee has engaged in deceptive or fraudulent conduct in using FMLA leave. Rather, the employer must be able to point to specific facts which led it to believe that the employee was engaging in improper behavior. In other words, an employer must conduct a thorough investigation and have sufficient evidence to support its honest belief. 

The Sixth Circuit has been explicit that it does not require an employer’s decisional process to be optimal or that it leave no stone unturned; however, successfully establishing the defense does require that the employer made a reasonably informed and considered decision before taking an adverse employment action. In recent cases where the employer was successful in establishing the honest belief defense, several steps have been recognized as particularly important, as they related to the circumstances involved:  1) the employer’s investigation included several steps, including interviewing witnesses and collecting their formal statements about the event; 2) the company doctor or nurse reviews gathered facts to determine whether the observed activities are inconsistent with the employee’s alleged illness or injury; and 3) the employer provided the employee with an opportunity to produce evidence to the contrary. 

Generally speaking, in determining whether an employer has successfully established the honest belief defense, the courts seem to focus on the sufficiency of the investigatory process, rather than whether a jury could have looked at the same evidence and reached a different conclusion. Thus, a thorough investigation and detailed documentation is critical. The more objectivity you can demonstrate, the more likely your defense will succeed. 

FMLA abuse is one of the biggest day-to-day headaches employers deal with.  It is so rampant in some industries that employers may be tempted to go overboard with the honest belief doctrine, or even use it as a sword rather than just a shield.  That’s a mistake.  Employers should not interpret the defense as a blank check or as a pretext to justify termination of an employee on leave under the FMLA. Rather, employers who are considering terminating an employee because of suspected FMLA abuse are best served first consulting with competent legal counsel who can better help apply the contours of the honest belief defense, and any other applicable aspect of the FMLA.

Julie Moore is a Member in the firm’s Morgantown office. Julie focuses her practice primarily in labor and employment law. She regularly advises and counsels employers – both private and public – on various aspects of employment law, ranging from wage and hour compliance, to employee discipline and termination issues, to disability accommodation requests.
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