Just like you can’t spell awesome without ME, you can’t take FMLA leave without some conditions. There may not be 22 such conditions, but I know all too well, that one of those conditions is that the FMLA leave should be genuine. FMLA abuse can lead to bad blood between the employer and the employee.
See, look what you made me do.
Here’s a hypothetical: You are one of the many hundreds of thousands of people attending the Taylor Swift concerts the next two weekends in Boston and New York. (Yes, I’m raising my hand too.) And you bump into an employee at the concert. But it just so happens that the employee has been out on FMLA leave.
Do you need to calm down? Do you tell the employee that “I knew you were trouble”? Are you on your own, kid? What if the employee comes clean?
Call it what you want, but you shouldn’t need to go through a labyrinth to get to the right answer.
In fact, the answer isn’t quite as delicate as you might think. (In your wildest dreams, you might not believe that this type of scenario is not a blank space in our judicial system.)
In the legal world, there are a few instances of employees either going to a concert or performing in one while on FMLA leave.
(Before I go further and avoid any suggestion that I’m engaging in illicit affairs here, I discovered that HR Dive had done a similar post while I was drafting this post. So you can read that article here. Hat tip to them on the post.)
Take, for example, Beishl v. County of Bucks, where an employee was thought to be performing with his band (name “Flabbergasted”) and calling out of work — sometimes on intermittent FMLA leave. Was the employer…ready for it? Well yes, the employer got word of one such concert and videotaped the employee. That subsequently led to discipline where the employer believed that the employee was abusing FMLA leave with “repeated callouts following a two or three day pattern around weekends and also occurring on the same dates as concerts for which the employee was performing with his band”.
The District Court found that the employer had an honest belief that “an individual who was capable of screaming rock lyrics into a microphone in a bar until the small hours of the morning was capble of coming to work that day or the day before”. In other words, the employer didn’t just need to tolerate it. And thus, the employer terminated the employee properly for FMLA abuse — not because it was retaliating against him for taking leave in the first place. The court did not engage in any “Would’ve, could’ve, should’ve” analysis.
Or Jackson v. BNSF Railways where an employee — let’s just call her “Betty” for this hypothetical — allegedly attended a Beyonce concert in a luxury suite while out on FMLA leave (and who only took the leave shortly after receiving a performance improvement plan). Maybe the employee should’ve said no to the concert? Soon enough, sparks fly and the employer terminated her employment finding that she had abused her medical leave. The district court agreed, concluding that the employee could not show that the employer’s actions in terminating her employment was a pretext for terminating her because of the leave itself. Still, there’s something sad, beautiful tragic about the story.
So, back to Tay-Tay. Can you be a renegade and fearless in terminating the employment of someone you see at the concert who was out on FMLA leave? How’s that for a question…? Well, not quite. But you don’t need to be a mastermind either. Talk with your counsel to make sure there’s nothing new to worry about and you can be out of the woods.
Hopefully, you’ve figured out that there are just a ton of Taylor Swift references here. I’d say don’t blame me, but well, the post is mine and this isn’t a hoax. And yes, I’ll be singing along at the concert too.