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Combatting FMLA Abuse

published in McAfee & Taft EmployerLINC | October 21, 2015

Corporate Woman

By Philip R. Bruce

The Family and Medical Leave Act provides laudable protections to employees and their families. But FMLA leave is sometimes abused. That abuse drives up costs for employers and creates red tape and administrative hassles for HR managers. Fortunately, the Tenth Circuit Court of Appeals (which handles Oklahoma cases) recently provided reassurances and lessons to employers trying to combat FMLA abuse

Honesty is the best policy

In Rowe v. United Airlines, Inc., the Tenth Circuit upheld the airline’s decision to terminate Mingyi Rowe for lying when asked about her FMLA leave. Rowe and her husband were both flight attendants for United in Denver, Colorado. Rowe had migraine headaches and had used intermittent FMLA leave for several years. For each of Rowe’s headache episodes, United allowed her to take FMLA leave.

Rowe and her husband were planning a trip to visit her family in Taiwan, and United provided several different ways for employees to fly on United for free or at a reduced cost. This included searching for flights on United’s internal computer system to determine which flights were likely available for employees. Rowe and her husband searched the internal system several times for flights to Taiwan but either did not search for return flights or searched for return flights weeks after arriving. Ultimately, Rowe selected a flight that left for Taiwan the day before she was scheduled for a three-day shift in Denver. Importantly, she would have had to leave Taiwan less than 12 hours after arriving to make it back in time to start her assigned shift.

When Row arrived in Taiwan she—surprise!—claimed that she was unable to make it back to Denver (15 hours behind Taiwan) and could not work because of a migraine headache.

Upon returning, Rowe’s immediate supervisor met with her to ask about her missed shift. During the interview, Rowe claimed that she originally intended to take a flight back to Denver. After a few months of investigating the circumstances, United learned that Rowe never searched for return flights on United’s internal system and never attempted to buy a regular or discount ticket that would have allowed her to return in time for her shift. A more senior supervisor subsequently met with Rowe and terminated her for lying about her illness so that she could skip work.Rowe filed a lawsuit claiming that United discriminated against her and retaliated against her for using FMLA leave. Among other reasons, she argued that her immediate supervisor was dishonest in the investigation because, contrary to his testimony, he did not have certain records when he first met with her. Rowe also claimed United was sick of her extensive FMLA leaves for migraines.

Lying is a one-way ticket to termination

The court didn’t buy Rowe’s arguments. Although there were inconsistencies with the testimony of Rowe’s immediate supervisor, the evidence established the more senior supervisor who terminated Rowe believed she was lying. Put simply, the court took a common-sense approach and backed up the decision-maker’s belief that it was unreasonable for Rowe to plan to return to Denver less than 12 hours after flying halfway around the world to Taiwan. Moreover, the court was persuaded by the documents the decision-maker had at the time he made the decision that showed Rowe and her husband never tried to schedule a return flight. Finally, the court noted that United had historically accommodated Rowe’s previous need for FMLA leaves. In short, the court determined that even if the decision-maker was mistaken, he had an honest belief that Rowe was lying and trying to abuse FMLA – and that was enough to lawfully terminate her.

The takeaways

The court’s decisions provide several key lessons to HR managers trying to curb FMLA abuse. First, it shows that FMLA leave is not a ticket for employees to lie. Second, the investigation was not rushed – United took more than three months from its first meeting with Rowe to the termination meeting. Third, the decision-maker took a reasonable, common-sense approach in deciding that Rowe’s story just didn’t add up. Fourth, the decision-maker had documents to back up his honest belief Rowe was untruthful. Fifth, there were multiple people involved in the investigation and decision, which protected United against the employee’s claim that the employer was dishonest. And, finally, United followed the rules and never lashed out against Rowe for taking FMLA; it always accommodated her, at least until it had evidence and a strong reason not to.

  • Rowe v. United Airlines, Inc., No. 14-1317 (10th Cir. 2015)