had enough of its employees abusing FMLA leave, so it played the ultimate trump card — the Company hired a private investigator to conduct surveillance on 35 employees who were suspected FMLA abusers.  One of the 35 was Daryl Scruggs, who served as a brazier (one who torches parts into fan coils) for the Company.

Scruggs Has No Where to Hide

For several years beginning in 2004, Scruggs requested and was provided intermittent FMLA leave to visit his mother at a nursing home and to drive her to doctor’s appointments.

In 2006, Carrier initiated an aggressive campaign to clamp down on excessive absenteeism.  In addition to developing new procedures for requesting leave, Carrier also hired a private investigator to conduct surveillance Scruggs and several co-workers who were suspected of misusing leave or who had a high number of unexcused absences.  On one of these occasions, the investigator set up video surveillance in front of Scruggs’ home throughout the day to follow his comings and goings at a time when he requested FMLA leave to visit his mother.

The P.I. had little to report.  In fact, video indicated that Scruggs emerged from his house just once that day — to check his mail.  His two cars were parked in the driveway all day and didn’t move.  Scruggs’ poor mom never received a visit from him that day.

Scruggs, however, begged to differ.  After being confronted with the results of the video surveillance taken on a day when he should have been caring for his mother, he first could not recall what he did that day.  Later, he insisted that his brother picked him up and dropped him off in the back of his home, and that he used the back door to come and go (otherwise known as the ‘ol “Sneak out the back door to see mom at the nursing home” trick).  Curiously, Scruggs later provided documentation from the nursing home showing that he had checked out his mom for a doctor’s visit.  As for not reporting to work that day, Scruggs suggested that, by the time he returned home (through the back door, of course), it was “early afternoon” and therefore too late for him to report to work.

Not surprisingly, Carrier wasn’t buying Scruggs’ story.  Not only did the video confirm Scruggs didn’t leave his house, the documentation he provided was inconsistent.  On one hand, documents from the nursing home showed that he checked out his mother at 11:30a.m.  On the other hand, a note from her physician indicated that Scruggs had been there between 10 and 10:30a.m., which was well before he checked mom out of the nursing home.  After reviewing all the information, Carrier terminated Scruggs employment, citing: 1) the surveillance video; 2) inconsistencies among the documents from the nursing home and his mother’s physician; and 3) holes in Scruggs’s account.  Scruggs later filed FMLA interference and retaliation claims.

Scruggs FMLA Claims Dismissed

An employee is entitled to reinstatement after taking FMLA leave only if he takes leave for its intended purpose.  As the court pointed out, an employer can “refuse to reinstate the employee based on an ‘honest suspicion’ that she was abusing her leave.”  Here, Scruggs could not advance his FMLA claims because Carrier had an honest belief that he was not using FMLA leave for its intended purpose.  Scruggs v. Carrier Corp. (pdf)

Insights for Employers

Time and again, I’ve addressed FMLA abuse on this blog, and I’ve offered suggestions for combating leave abuse here and here.  So, I won’t hit you over the head with another laundry list of items to fight FMLA abuse.

What’s interesting about this case is the employer’s use of surveillance to support its position that it had an honest suspicion Scruggs was not using FMLA leave for its intended purpose.  I think we are likely to see more of these honest suspicion cases in the future as employers continue to fight FMLA abuse.

But employers, beware!  When you are presented with evidence of suspected abuse, it is critical that you independently investigate the issue before taking action.  Of course, you need not employ surveillance to do so, but a court will expect you to validate the accuracy of your suspicions before taking an adverse action against the employee.  Moreover, although courts understand that an imperfect investigation could support an ‘honest suspicion’ defense, jumping to conclusions and employing a shoddy investigation also gives the impression that the investigation was mere pretext for something sinister.