Detecting and Combatting Family Medical Leave Act Fraud in the Workplace

The Family and Medical Leave Act was passed with the best of intentions. The 1993 law requires all but very small employers to grant time off to employees to care for sick or injured family members, or to take time off to seek care and recovery for themselves in the event of a medical emergency.

However, it does have the potential for abuse. And workers have been abusing the law for their own purposes at their employers’ expense. Yes, leave granted under the FMLA is unpaid (unless the employer decides to provide paid leave). But it does make it tough on employers trying to schedule around weekends, holidays and special events.

Are your employees abusing the FMLA? Here are some of the warning signs:

  • Increased requests for FMLA leave around weekends and holidays.
  • Frequent Monday and Friday absences for FMLA
  • More FMLA requests during special events around town, such as Mardi Gras in New Orleans, or a big music festival.

What actions can you take to protect yourself? One idea: Monitor workers’ Facebook and other social media pages. Are the images and status updates consistent with the workers’ story?

In one recent case, Jaszczyszyn v. Advantage Health Physician Network, an employer terminated an employee after a co-worker found that she had been posting images of herself enjoying a local Polish music festival.  She had also left messages with her employer saying she was in too much pain to go to work the following Monday. After an investigation, the company let her go. Jaszczyszyn sued her employer, claiming her employer was interfering with her right to take leave under the FMLA.

Jaszczyszyn lost the case at the local level, then appealed and lost again.

So employers can take action to terminate employees caught in FMLA fraud. But it’s important that the employer be on a firm factual footing, because when a worker asserts that they were entitled to the protections of the Family Medical Leave Act the burden of proof shifts to the employer to show that the employee was committing fraud.

Why do employees do this? It could be to enjoy a weekend off with friends despite work responsibilities. Or they could be using the FMLA as cover to work another job.

So what can employers do?

Collect time-stamped photos or Facebook status posts showing that the employee was not where he or she said he would be. Obviously, if an employee is claiming medical leave for his own illness or injury, a news story proclaiming him to be the winner of the Ironman Triathlon over that same weekend would indicate that he was not as hurt as he claimed to be. (But he may need medical leave by the end of the weekend!)

Conduct an investigation. Bring in the workers’ known friends and colleagues, one at a time, and ask them what they know of the suspected workers’ activities and plans for the weekend.

Hire a private investigator. These professionals will conduct discreet surveillance of the workers’ home and photograph or videotape the workers’ activities – or lack of same. Remember that some jurisdictions have laws restricting recording or taping without consent so know the laws in your area. You may want all your recordings with no audio.

If the employee is using the FMLA act as a cover to work a second job, naturally it won’t be difficult to establish with video surveillance. In other cases the truth may not be so clear-cut.  You will also want to compare anything collected on video with any restrictions the employee claimed due to medical conditions necessitating medical leave. The law protects employers, too, provided they make a reasonable and considered decision based on their honest belief and a thorough review of the evidence available at the time.

One side benefit of surveillance: When word gets out that an employee was fired for FMLA fraud, or that the company can and will hire a private investigator to pursue possible FMLA fraud, others will be less likely to attempt the same thing.

Preventing and Mitigating Workplace Violence

When shooting rampages happen, they make headlines. They do so, of course, because they are relatively rare. But violence and threats of violence all along the spectrum occur in workplaces all over the country.

According to the Bureau of Justice Statistics, there were approximately 572,000 nonfatal incidents of workplace violence in 2009 alone. These incidents include assault and battery, rape and sexual assault and robbery. The Occupational Safety and Health Administration has a broader definition of workplace violence, and estimates that it strikes as many as 2 million workers each year.

Workplace violence can arise as the result of assaultive or threatening behavior among employees, between supervisors and employees, and even from outside the workplace. It is not unusual, for example, for upset significant others and exes to show up at the workplace to harass, threaten or assault employees. Unfortunately, businesses need to have a plan to prevent workplace violence, and a plan and resources to mitigate it when it occurs.

Who is at risk?

Anyone can be a victim of workplace violence at any time. But according to the Occupational Safety and Health Administration, those most at risk of workplace violence include anyone who handles cash or valuable goods and interacts with the public, workers who work in very small groups or who work alone, law enforcement officers and others involved in social services with unstable or criminal populations, such as visiting psychiatric workers, health care workers and probation officers. Taxi drivers and letter carriers are also at an elevated risk.

Countermeasures

OSHA recommends a “zero tolerance” policy for workplace violence incidents caused by employees. Include language in your employee handbook and/or new hire packet that makes it clear that one incident of threatening or other violent behavior will result in immediate termination of employment.

This is important to protect the business as well. If you give an employee a second chance and he hurts someone, that is a powerful cause of action against you, the employer. If a worker suffers damages as a result of workplace violence, an employer that kept a known offender on the payroll despite a history of incidents is much more likely to face severe punitive sanctions, over and above compensating the employee for injuries suffered, if the case goes to court. Settlements will likely be less favorable to the employer, as well.

Install access control systems.

Access control systems allow the employer to control who gains access to the workplace. For example, you can install a key-card swipe system. Then if you want to revoke a former employee’s access to the building, you don’t have to change locks – just deactivate the former employee’s swipe card. A punch code system works, too – whenever anyone leaves the company, the HR director notifies the security director, who changes the access code and notifies current employees.

Of course, both systems work to prevent access to street criminals and anyone else looking to gain unauthorized access to the workplace as well, not just former employees.

Add lighting.

The walk from the office to the workers’ cars can be hazardous. You can mitigate that by adding extra lighting and security surveillance of the parking lot. Workers can go to cars in groups, as well.

Get cash out of the registers

Cash on hand is an obvious robbery target – particularly after dark. Employers can install drop safes and time lock safes to ensure that the potential payoff is not worth the risk of a robbery attack. Employers can also work to move cash transactions to electronic or credit card transactions, further reducing the amount of cash exposed.

Empower Employees

Home health care aides, maids and cleaners and others are routinely in homes and workplaces alone. Employees should have the authority to assess whether their workplace is unsafe, and to refuse to enter into unsafe situations without fear of reprisal by the employer.

Sterilize Field Workers

When employees go out into the community to work, they should not bring their purses or any other valuable items with them. Provide a safe place for workers to store purses and anything else of value. Encourage workers to bring nothing but required identification and lunch money out into the community or a hazardous worksite.

Have a Crisis Response Plan

Develop a crisis response plan to handle any incident you can reasonably foresee, and update it regularly. This could be a plan to quickly evacuate the entire office in the event of a bomb threat or shooting incident, or to evacuate a single employee out of site of a jealous ex or stalker who may become a problem. Rehearse these plans periodically, and speak with employees about updating them.

Also, be sure to have an adequately-stocked first-aid kit on hand, and invest in training employees in how to provide assistance to anyone injured.

Encourage employees to share information

Occasionally issues from outside the workplace can spill into the office. Encourage employees who are having issues in their private lives to notify security without fear of embarrassment. This will allow decision makers to take appropriate actions to control access and to identify a potentially violent person the minute he shows up in the area. That may give security time to block access, notify law enforcement, and ensure the targeted worker is in a safe location.