An article ran last week in the National Law Journal about employers conducting surveillance on employees whom they suspect of abusing FMLA leave ("Spying Employers Raise Legal Hackles," by Tresa Baldas). The article included quotes from employer and employee advocates, predictably coming down on opposite sides of the issue. Employer attorneys claim they need to protect themselves from dishonest employees; employee attorneys counter that surveillance violates employee privacy and discourages employees from taking leave.
I think this type of surveillance is out of line, legally and as a practical matter. It fosters a relationship of distrust between workers and management, it wastes time and money, and it risks legal action for harassment, retaliation, and privacy violations (imagine what -- or who -- could be caught on a surveillance tape). It's also extremely distasteful: an investigator lurking on the sidewalk, taping employees in their front yards, picking up their kids at school, going to the grocery store. This shouldn't be the price of exercising a legal right. I know that employers feel taken advantage of by employees who abuse the FMLA, particularly for intermittent leave, but the law itself provides avenues for reining in these employees -- medical certifications, re-certifications, and second opinions, for example. These methods are neither perfect nor quick. They are a compromise that attempts to balance employer needs and employee rights.
I'll even go out on a limb and say that I think most people agree that surveillance is distasteful. So why are employers doing it -- and winning some of these lawsuits? Because bad facts make bad law. An employee calls in sick, claiming she can't work because she's taking new medication, spends the day mowing lawns for her husband's business, then calls in sick again that evening with a migraine (Vail v. Raybestos, 7th Cir. 2008). An employee claims to be too sick and dizzy to drive to work, but spends his time off at the gym and doing errands (Colburn v. Parker Hannifin, 1st Cir. 2005). After an employee's request for vacation is denied, he takes FMLA leave for a knee injury instead -- the same injury for which he took FMLA leave at the same time the previous year, after another vacation request was denied -- and goes to Las Vegas (Crouch v. Whirlpool, 7th Cir. 2006). In these cases, the method used to catch the employee gets lost because the employee's deception seems so clear.
But what about employees who are surveilled while on legitimate leave? I haven't seen a case where, for example, an employee takes leave for a knee injury and is taped being helped into the car by his male lover, thus catapulting him out of the closet at work. Or an employee's children and some of their friends are taped running through the sprinklers in their birthday suits, while the employee keeps an eye on them while trying to recover from a migraine on the front porch. Or an employee is taped attending a political rally for an unpopular candidate, buying condoms or adult diapers at the store, crying out of pain and frustration after recent surgery, or doing any of the many things that all of us would rather keep private. With facts like these, employer surveillance suddenly seems like a clear violation of societal norms.