In the latest Weekly Wright Report:
Playing Your Ball Where it Lies
by Don Walsh
I admit that my golf game is so bad that lying about the number of strokes provides little improvement and would probably not be believed anyway. Like my exaggerated low score, a recent court decision reaffirms that employers won’t be found in violation of the Family Medical Leave Act where the employer had a demonstrable good faith, honest basis for believing the employee was just less than honest about his golf game.
Essentially, the case hinged on the fact that if an employer terminates an employee based on an honest, good faith belief that the employee engaged in wrongdoing, this belief will be sufficient to defeat an employee’s claims of interference and retaliation under the FMLA. In the past, this defense has provided cover for an employer who terminated an employee observed by co-workers walking several blocks at an Oktoberfest celebration while the employee was on leave because of severe back pain. It also worked for an employer where coworkers shared with management social media pictures of the employee drinking at a local festival when she was supposedly convalescing. Last month, it also provided a valid defense for an employer where the employee was observed playing golf when he claimed he needed to be off work to deal with “flare-ups” in shoulder pain.
The U.S. Court of Appeals for the Sixth Circuit affirmed the employee’s termination accepting the employer’s reasonable belief that the employee was abusing his leave under the Family and Medical Leave Act given that he took such leave adjacent to PTO days or weekends and then golfed during such leave. In LaBelle v. Cleveland-Cliffs, Inc., the employer became suspicious and twice hired a private investigator to follow the employee. Each time, he was seen playing golf without any indication of pain. Seeking to defend his actions, the employee argued that he could golf because “80 percent of your swing is legs and core.”
Perhaps having a better knowledge of the mechanics of a good golf swing, the Court found his use of leave was inconsistent with his FMLA certification; if the employee needed FMLA in order to rest over a long weekend, he should have requested it for that purpose. Because the employer possessed a demonstrable “honest belief” that the employee abused his leave, its decision to terminate did not violate the law.
Obviously, not every person seeking FMLA needs to be watched or suspected and employers should continue to exercise every caution before investigating employee fraud which should include conversations with counsel. For what it is worth, this should be a fair warning to those employees who are tempted to push the limits of leave granted by the employer pursuant to a medical need.
Is 13 the Lucky Number?
Ever wonder why some employees leave? Consider the number 13. A recent ADP study found that employees will be more likely to leave their current job and jump to another company when offered a 13% increase in pay. Compare that to the 2019 federal cost of living adjustment, which is only 2.8%. In real numbers, that means, that an employee making $100,000 would uproot her position for another $13,000 per year as opposed to sticking around for $2,800. That’s a difference of a little over $10,000.
The ADP study also found that 63% of U.S. employees are considering or have considered moving companies for another job during 2019. In any event, 27% of employees change jobs annually.
Now is about the right time of year to evaluate your company budgets to see what type of salary adjustments or benefits your company may want to make in 2020. While 13 may be lucky for some lucky employees, a 13% salary increase for all employees can be a rather unlucky number for employers.
Want more? Visit the Weekly Wright Report page to browse past issues.