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FMLA abuse is an increasing problem oftentimes leaving employers searching for options. However, the Fourth Circuit Court of Appeals gave employers a win in Sharif v. United Airlines, Inc., when it affirmed an employer’s decision to fire an employee who lied about his need for FMLA leave.

The Plaintiff, Mr. Sharif, and his wife were United Airlines employees. They scheduled a multi-week vacation. United approved the entire block of vacation time for Mr. Sharif’s wife, but it did not approve all the time for Mr. Sharif. Instead, United scheduled Mr. Sharif to work a shift in the middle of his planned vacation.

On the morning his shift was to begin, Mr. Sharif requested intermittent FMLA leave for a panic attack. United had previously approved a request by Mr. Sharif for intermittent FMLA leave for his anxiety. United granted the request, but when it later learned Mr. Sharif used FMLA leave during the week he had previously requested vacation, it suspected fraud and opened an investigation. United determined Mr. Sharif lied about his need for intermittent FMLA and terminated his employment. Mr. Sharif then sued United alleging the company retaliated against him for using FMLA leave.

The court dismissed Mr. Sharif’s claim, noting that while it is important for employers to grant valid leave requests, it is equally important for employers to be able to prevent FMLA abuse. Despite Mr. Sharif’s allegation that United did not conduct an adequate investigation, the court found that United had “no obligation to pursue additional investigation when it had more than ample reason to believe it had been lied to.”

Mr. Sharif also argued that United’s decision to terminate him for skipping one shift was extreme and unfair. Rejecting this argument, the court said, “courts are not a ‘kind of super-personnel department weighing the prudence of employment decisions.’” The court held the employee’s fraud against United justified the adverse action.

This case serves as a reminder that employers may legitimately enforce conduct rules and take adverse action against employees for rule violations and dishonesty even when the employees have engaged in protected activity, such as requesting leave under the FMLA. As this case demonstrates, however, a terminated or disciplined employee may bring a lawsuit alleging unlawful retaliation. It is therefore critically important for an employer to thoroughly investigate suspected employee misconduct and to make informed decisions supported by the facts found in the investigation. An employer should avoid taking adverse action against an employee based on rumor and speculation. Finally, it is always advisable for an employer to consult with employment counsel before taking adverse action against an employee who engaged in a protected activity and is suspected of misconduct.

Caitlin Goforth, an attorney no longer with Poyner Spruill, was the original author of this article.

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