The Volokh Conspiracy

[Orin Kerr, August 19, 2008 at 2:38pm] Trackbacks

"Spying Employers Raise Legal Hackles":

The National Law Journal has this interesting report.

JosephSlater (mail):

There's a fairly long history of this sort of thing with regard to workers' compensation cases, so I guess it was just a matter of time before the same thing happened with FMLA cases. Thanks for the link.

8.19.2008 4:21pm

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Edward Lunny (mail):

Those opposing the surveilliance seem to suggest that no wrong doing has occured, and that employers should just accept the costs of those whom do defraud the company. As an employer, if I'm paying you for a debilitating medical condition and you are scamming the system and get another job os shuffle off to rhumba class, I'm going to look to get my money back and do whatever I can to see you into jail. Fraud is theft no matter how it is justified and should be a criminal offense. This isn't just theft from a faceless company, but, a theft from all of the other employees as well. I suspect that if people knew the cost to them personally ,of Bubba and Babs scamming the system, they wouldn't be so lacksadaisical about it and far less defensive.

8.19.2008 7:37pm

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ReaderY:

I think if employees are taking a substantial amount of leave and employers have a good reason to believe employees simply do not have the condition they claim are within their rights.

However, it can easily be abused. Managers often encourage employees to take accrued sick days that would be lost under use-it-or-lose-it policies. .

One remembers the reports of mortgage companies whose their employees instructed applicants what to put on the applications, and who would then claim that compliance with those instructions constituted fraud on the mortgage compny if there was subsequently a problem.

One could imagine employers falling into such a practice. The law should not permit them to benefit if they do so.

8.19.2008 7:59pm

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Corkie the Dog:

Edward, I don't think you'll be "paying for a debilitating medical condition" -- FMLA leave is unpaid.

Sincerely,
Corkie the Dog

8.19.2008 9:46pm

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David M. Nieporent (www):

Edward, I don't think you'll be "paying for a debilitating medical condition" -- FMLA leave is unpaid.

No. The employee generally doesn't receive a salary; that's not the same thing. For instance, he does get health benefits.

And even setting aside compensation to the employee, there are other costs to the employer. Like holding open a position for someone who's out for up to three months.

8.20.2008 12:57am

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Sarah (mail) (www):

Ah, FMLA. Doctors are apparently real pushovers sometimes; privacy laws restrict my comments further but MY GOSH.

I think the surveillance thing goes a bit far. After twelve weeks employees are out of paid leave, and out of protection, and in my experience decide they'd rather not come back at all than face nine full months of having no time off. But then, I hope that all of these companies do a very public, highly visible job of surveillance on their possibly-malingering employees -- this sort of lawsuit, along with emailed layoff notices and such -- is an excellent way of figuring out the creepiness factor of a potential employer.

8.20.2008 8:15am