When Your Employee Sues Over A FMLA Violation

Law Blog

Under the Family and Medical Leave Act (FMLA) of 1993, as an employer, you are required to provide your employees with up to 12 weeks of leave without placing your employee's position in jeopardy if your employee has a family or medical problem. While this is a noble requirement, there are cases when employees fabricate a case that would qualify them for leave. For this reason, it is necessary to sometimes terminate an employee who has abused the FMLA. However, if you are then sued over this, your business will need to prove that your actions were justified.

Find Out Whether You Must Comply With The FMLA

You are protected from having to comply with FMLA if you have less than 50 employees. Your employee will also need to have worked for a year and for at least 1,250 hours in the past year.

Investigate The Reason For Your Employee's Leave

You may need to investigate whether one of the covered reasons for FMLA has not occurred. For instance, employees are able to take leave if they have adopted a child. However, if you obtain evidence that your employee did not adopt a child, this can be use as a defense for terminating an employee over an FMLA abuse.

One of the best ways to find evidence of abuse is through your employee's social media posts. Employees are often caught by posting vacation photos. If you can prove that the vacation took place around the same time as the event triggering the leave, this is evidence of FMLA abuse.

Determine If Your Employee Should Have Given An Advanced Warning

If the reason for taking leave was known ahead of time, you can require that your employee provide you with an advanced notice. For example, if your employee knows that she was pregnant, does not tell you and does not show signs of pregnancy, you may be allowed to deny the request for a time-off.

Verify That Your Employee's Condition Qualifies

Another situation is where your employee is sick, but you do not consider the condition serious. Certain conditions do not qualify an employee to take leave, such as having a cold. However, you should always double-check the list of qualifying conditions to ensure that it is not covered. If you can demonstrate that the condition isn't covered, this fact can be used in your defense.

Wrongful termination can lead to serious consequences for the employer, so you should consult with an employment lawyer if you are being accused of wrongful termination due to the use of the FMLA law. Your employment lawyer can gather evidence necessary to prove that your actions were justified.


21 December 2015

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