Last week, I discussed the bounds
of the "honest belief rule" as a defense to a discrimination claim.
Yesterday, in Seeger
v. Cincinnati Bell Telephone Co. [pdf], [an enhanced version of this opinion is available to lexis.com subscribers]the 6th Circuit used that same
defense to affirm the termination of an employee who claimed retaliation under
the FMLA. This case, though, has wider implications for employer who use
surveillance to monitor the legitimacy of their employees' medical leaves.
Tom Seeger took an approved leave of absence under the
FMLA for a herniated lumbar disc. Four days after Seeger's doctor certified him
as completely unable to work-including any light duty, which entitled him to
receive paid disability leave under the employer's policy-two of Seeger's
co-workers saw him walking, seemingly unimpaired, at the Cincinnati
Oktoberfest. One of the employees, who knew Seeger was collecting paid
disability leave, reported his sighting to CBT's human resources manager.
CBT conducted an investigation, which consisted of
obtaining sworn statements from the two employees who saw Seeger, reviewing
Seeger's medical records, disability file, and employment history, and consulting
with CBT's internal medical manager. Based on the inconsistency between
Seeger's reported medical condition and his reported behavior at Oktoberfest,
CBT terminated Seeger for "disability fraud" (over-reporting his symptoms to
avoid light-duty and continue collecting disability payments).
Relying on the "honest belief rule," the 6th Circuit
concluded that CBT's termination decision did not violate the FMLA:
CBT made a "reasonably informed and considered decision"
before it terminated him, and Seeger has failed to show that CBT's
decisionmaking process was "unworthy of credence." ... The determinative question
is not whether Seeger actually committed fraud, but whether CBT reasonably and
honestly believed that he did....
CBT never disputed that Seeger suffered from a herniated
disc.... Seeger's ability to walk unaided for ten blocks and remain at the
crowded festival for ninety minutes understandably raised a red flag for CBT,
giving it reason to suspect that Seeger was misrepresenting his medical
condition in an attempt to defraud CBT's paid-leave policy.
This case has wide implications. There are many laws that
entitle employees to take time off from work: FMLA, ADA (disability), PDA
(pregnancy), Title VII (religious accommodation), and state workers' compensation
laws, to name a few. Many companies use surveillance to curb leave of absence
abuses. I am not suggesting that you surveil every employee who takes leave
from your workplace. Without a good faith belief supporting the surveillance, a
court could conclude that your actions are unlawful.
If, however, you have a good faith reason to test the
legitimacy of an employee's leave via surveillance or other monitoring, Seeger's
invocation of the honest belief rule will offer you some protection if you
misinterpret the results of your investigation.
Visit the Ohio Employer's Law Blog for more
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