Working another job on leave: Is it FMLA abuse?

by on January 14, 2010 · 0 Comment POSTED IN: HR Info Center

Supervisor Janice Davies felt uncomfortable, but knew she had to make this phone call. One of her workers, Tsing Lee, had asked for a month of FMLA leave, but one of his colleagues had seen him working at a restaurant the night before.

Janice called the restaurant. “Tsing, you know it’s our company policy that working while on FMLA leave is FMLA abuse.”

Helping incapacitated wife—FMLA abuse?

“My wife just had a baby,” Tsing said. “She owns this restaurant and we’ll have to close it down if I don’t fill in for her.”

“You’re violating our FMLA abuse policy, Tsing. Find someone else to work at the restaurant. Otherwise, we’ll have to fire you.”

Tsing agreed not to work, but a week later another colleague saw him at the restaurant. When confronted, he admitted it, and Janice fired him.

Tsing sued. Did he win?

The decision

No, Tsing’s attempt to prove the company retaliated against him for taking FMLA leave failed to persuade the court.

The FMLA guarantees employees up to 12 weeks of leave per year for:

  1. A new child in the family – by birth, by adoption or by placement in foster care
  2. Caring for a family member with a serious health condition, or
  3. The employee’s own serious health condition that prevents him or her from performing the job.

Tsing had a new child, and from his perspective by taking leave he was, in effect, taking care of it, at least indirectly. By working in the restaurant, he was allowing his wife to stay home and look after the baby.

Court defends policy

That may sound reasonable to some, but in this case the court stood up for the company’s right to forbid employees from working while they’re on medical leave. Firing an employee for violating such a policy doesn’t violate his FMLA rights.

The existence of the policy was not in dispute. Nor was the fact that Tsing committed FMLA abuse.

So he had no case for retaliation.

Does your company have a similar policy? Do you really want employees you supervise to take second jobs while they’re on leave from your company? You might want to raise the issue of FMLA abuse at your next staff meeting.

Cite: Pharakhone v. Nissan North America, Inc., U.S. Court of Appeals, 6th Circuit, No. 01-59955, 4/2/03.

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