September 2012

By: Alan E. Seneczko, Esq.

We all know how incredibly frustrating and difficult dealing with nebulous claims of intermittent FMLA leave can be – migraines that only surface on Mondays; care giving that is only needed on Fridays, etc. Unfortunately, one of the best and perhaps only ways to address this difficult problem is to establish that the requested leave is not “needed.”

In an opinion just issued, the Seventh Circuit added some additional perspective to this issue. Fed up with suspected FMLA abuse, the employer in Scruggs v. Carrier Corp., Case No. 11-3420 (7 ^thCir. 2012), hired a private investigator to conduct surveillance on 35 employees suspected of abusing the company’s leave policies. Based on this information, it concluded that one of the employees, Scruggs, was not actually caring for his mother in a nursing home on a day he requested leave for that purpose, and terminated his employment. Scruggs sued for interference with his leave rights.

The court dismissed his claim, but in doing so, did not rely on the regulation that covers fraudulent leave requests, 29 CFR § 825.216(d): “An employee who fraudulently obtains FMLA leave… is not protected…” Instead, it cited the job restoration language in the Act itself: “Any eligible employee who takes leave under [the Act] for the intended purpose , shall be entitled, on return from such leave – to [job restoration].” The court found that, because Scruggs never left his house to care for his mother, he did not use the leave “for its intended purpose” and thus was not entitled to job restoration.

The court’s decision reinforces two critical points: Sometimes, the solution is so obvious that it is overlooked. What does the law actually state? (Admit it – you were not aware of this simple clause or that it could be relied upon for this reason.) Second, it is difficult to challenge suspicious intermittent leave requests without having Mannix on retainer. (I date myself – Google it.)

Questions? Please contact WS Shareholder and Attorney Alan Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com.