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Employer Surveillance
of FMLA Employee OK'd
"Honest Suspicion" Leads
to Dismissal Despite Migraines

    The Seventh Circuit has affirmed a federal district court ruling that an employer legally hired an off-duty policeman to observe an employee off work for migraines on FMLA.  She was working for her husband in his business despite her doctor's certification that she was incapacitated due to migraines.  Vail v. Raybestos Products Company, No. 07-3621, __F3rd__ (7th Circuit July 21, 2008).

    Raybestos was aware of her husband's lawn maintenance business, and suspected that she was doing work for him as she has from time to time in the past.  The standard "honest suspicion" applied here since the investigator observed her work for her husband and therefore Vail was not using her FMLA leave for its intended purposes.  Her claim in court that her employer had interfered with her FMLA rights was rejected.

    Be certain that when you conduct surveillance of an employee on FMLA, that you record the information properly and that it is enough to confirm your "honest suspicion."