Don’t look now: Employers can Spy on Employees on FMLA Leave

Carrier Corporation set out to remedy what it claimed an “excessive employee absenteeism problem” at its manufacturing plant.  As part of its plan, Carrier hired a private investigator to follow employees targeted because they were suspected of abusing the company's leave policies.  One of these employees was Daryl Scruggs, who was authorized to take intermittent leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §2601 et seq., to care for his mother in a nursing home.

The private investigators hired by Carrier conducted surveillance of Scruggs on more than one occasion.  On the last instance, the surveillance appeared to reveal that Scruggs never left his home on a day he requested FMLA leave to take his mother to a doctor’s appointment.  In his defense, Scruggs submitted several documents to demonstrate that he picked up his mother from the nursing home on that day and took her to a doctor's appointment, but Carrier believed the documents were suspicious and inconsistent.  The company terminated Scruggs for misusing his FMLA leave.

Scruggs sued the company alleging it interfered with his right to intermittent leave to care for his mother and retaliated against him for exercising his rights under the FMLA.

However, the lower court disagreed with Scruggs and dismissed his case, and, in a recent decision, an appellate court agreed with the first court, dismissing Scruggs’ claims again and deciding that the company had an “honest suspicion” that Scruggs misused his FMLA. 

Two take-aways from this case for workers and their advocates:
First, the court took no issue with the employer conducting surveillance of Scruggs.  Apparently, there is nothing legally wrong with an employer paying a private investigator—who knows what amount of money—to tail an employee and spy on his home, on numerous occasions and for days at a time without his knowledge.

Second, according to this court of appeals, Scruggs was not “retaliated against” for trying to exercise his rights under FMLA (even though his employer was conducting surveillance of him) because it was not until after the company received evidence of potential misconduct—the report from the private investigators conducting the surveillance—that Scruggs was terminated.  In other words, the court of appeals said that meant there was some other reason for Scruggs’ termination, other than the fact that he took protected leave, so Scruggs’ claim failed. 

See more: Scruggs v. Carrier Corp., U.S. Court of Appeals, 7th Cir., No. 11-3420, August 3, 2012. 

By Lisl Duncan

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