Another one bites the dust: Playing in a band is not FMLA-protected
When Matt was hired, he informed the employer of his throat condition, the symptoms of which caused him to lose sleep. He took intermittent FMLA leave for the condition. One year, he took FMLA leave for the condition along with other, non-FMLA leave. At one point, he exhausted his 12 weeks of FMLA leave, but continued to take time off. This caused the employer to put a bit more scrutiny on Matt’s leave needs. The next year, he took more leave, some of it unexcused. He tried to return to work after several days out, but was turned away, being told he needed a doctor’s note releasing him to return. His doctor was unavailable for a few days, so Matt continued on leave, time off he thought was FMLA-protected leave.
After he returned to work, another employee indicated that, during the days of FMLA leave, Matt had played in a rock band, and provided social media posts to corroborate. The floodgates on Matt’s activities then opened and other employees indicated that they heard Matt calling into sports talk radio programs during working hours and/or taking time off surrounding different sporting events.
The employer dig in deeper and put together a calendar indicating the days Matt took leave in concert with his band’s gigs as well as sporting events. The resulting leave pattern led them to believe that Matt had abused his FMLA leave. They asked Matt to explain and when he did not provide a good enough reason for the pattern, he was eventually terminated.
In court, he argued that one of the gigs was during the time off waiting to be allowed to return to work. He also contended that his violation of FMLA policies was the result of confusion, and of having been given inconsistent or misleading information. His activities with the band or sports events were not illegal.
The employer argued that Matt was not fired for being in a rock band or attending sports games. He was fired because it believed – whether rightly or wrongly – that he took FMLA time to do so.
In the end, Matt could not show that the employer did not honestly believe he committed FMLA abuse, and the case was dismissed.
This employer investigated before taking action – always a smart move in such situations. It also produced evidence supporting its believe that FMLA abuse had occurred. Notably, it took years for the situation to come to a head, but that time gave the employer a lot of its evidence.
Beishl v. County of Bucks, E.D. Penn., 2:18-cv-02835, September 17, 2019.
This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.
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