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Beyoncé Concert Dooms FMLA Claim

SUMMARY: Employees on FMLA leave are not necessarily untouchable. Employers who have reason to suspect an employee is being dishonest about their need for leave have a right to investigate and terminate employment if the facts provide a good faith basis that the employee is abusing leave.

AUTHOR: Thomas W. Scroggins, Rosen Harwood Shareholder

Employers often worry that employees out on FMLA cannot be disciplined for fear of interference and retaliation suits. However, it is possible for an employer to have a legitimate, non‑discriminatory reason to terminate employment even while the employee is out on leave. A recent decision out of a Texas federal court demonstrates just that. Although attending a Beyoncé concert might have been just what the doctor ordered to help the employee overcome her breakdown, the employer and court did not put a ring on her claim.

The employee sued her employer for interference with her FMLA leave and retaliation for her use of FMLA leave. Jackson v. BNSF Railway Company, No. 4:16-CV-695-A, 2017 WL 3263131, at *1 (N.D. Texas July 28, 2017). She claimed she experienced a breakdown and was overwhelmed by her workload. She saw a doctor and applied for short-term disability leave. Seven days after seeing the doctor, a co-employee saw the plaintiff in the employer’s suite at a Beyoncé concert in AT&T Stadium. News of her attendance raised a red flag, and the employer suspected she was abusing her FMLA leave. When the employer tried to contact the employee regarding her concert attendance and return-to-work date, the employee coyly replied, “she had not been released by her doctor to meet and that as soon as she was, she would be happy to meet and answer questions at that time.” The employer was unaware of what condition necessitated the leave, and the employee never communicated anything regarding her medical condition after she initially saw the doctor. Ultimately, her employment was terminated for poor work performance, attendance at the concert while being on leave, and refusal to participate in the investigation regarding her attendance at the concert.

Employers have a right to investigate if they suspect an employee is committing fraud in claiming a benefit such as FMLA leave. Conducting this investigation does not violate the FMLA. It was the employee’s refusal to cooperate, among other things, that led to the decision to terminate her employment. The court stated, “[d]efendant’s honest suspicion of abuse is sufficient to defeat plaintiff’s substantive FMLA rights.” The employer had a legitimate, non-discriminatory reason to terminate employment, and therefore, the employee could not show that she was retaliated against her for taking FMLA leave. The person who made the decision to terminate believed the employee abused her medical leave because she requested it a few weeks after receiving a Performance Improvement Plan (“PIP”). The employee disagreed with the issuance of the PIP, but she agreed that her performance was deficient. Within days of taking leave, the employee was seen at the Beyoncé concert, and then refused to discuss or explain to her employer why she was too sick to work, but well enough to attend a concert in her employer’s suite.

FMLA does not provide employees with any greater rights to reinstatement or other benefits and conditions of employment, including continued employment. An employer may terminate an employee regardless of FMLA leave status provided that there is a legitimate, non-discriminatory reason for termination. Some of these reasons are poor performance, insubordination, fraud, or other prohibited conduct while out on leave. Employers have a legitimate reason to question and investigate employees who are out on leave that they suspect are abusing benefits. Make sure to document the employee’s performance record and all communications and attempted communications with the employee. Keeping good records is the best way to protect the employer in situations where they find themselves on the wrong end of a lawsuit. If the investigation provides evidence that an employee is acting fraudulently or abusing their benefits, the employer has a legitimate, non-discriminatory reason for termination, even if the employee is on leave.

If you have questions about FMLA compliance please contact Tom Scroggins at (205) 469-1164 or

This article should not be construed as providing legal advice or opinions on any specific fact situation. Readers are urged to consult with legal counsel concerning any specific legal questions involving the issues discussed.

The Alabama State Bar requires the following disclosure: “No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.”

© 2017 Rosen Harwood, P.A. All Rights Reserved.

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FMLA does not protect employees from investigation when facts provide a good faith basis that the employee is abusing leave.

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