Honesty & Crossing Fingers.jpgEmployers can face liability under the Family Medical Leave Act either by interfering with FMLA rights or by retaliating against an employee exercising FMLA rights. Under either theory, however, one of the best tools available to employers in defending FMLA claims is what is referred to as the “honest belief” defense.

For this reason, it is important for employers and their HR professionals to be in a position, if necessary, to use this defense in responding to FMLA lawsuits. 

The Honest Defense Belief in FMLA Litigation

Essentially under the honest belief defense, if an employer terminates an employee based on an honest, good faith belief that the employee engaged in wrongdoing, this belief will be sufficient to defeat an employee’s claims of interference and retaliation under the FMLA. 

The honest belief defense is extremely favorable to employers. This is because the employer does not have to prove that the wrongdoing actually occurred. Building on this point, courts hearing FMLA retaliation or interference claims will give significant deference to the employer asserting the honest belief defense. 

The Honest Belief Defense is a Potent Defense against FMLA Lawsuits  

The benefit of being able to rely upon the “honest belief” defense in FMLA litigation is illustrated by two cases decided in the federal sixth circuit court of appeals – the federal jurisdiction that includes Michigan.

In Seeger v. Cincinnati Bell Telephone Co. (2012), the defendant employer terminated the plaintiff employee for disability fraud following an FMLA leave. The employer asserted that the termination occurred after the employee was observed by co-workers walking several blocks at an Oktoberfest celebration while the employee was on leave because of severe back pain. This back pain supposedly prevented him from standing for more than 30 minutes at a time. In rejecting the employee’s arguments as to why the honest belief defense should not apply, the court responded, “Seeger’s argument and presentation of competing facts is misdirected because it does not question [the employer’s] investigatory process. The determinative question is not whether Seeger actually committed fraud, but whether [the employer] reasonably and honestly believed that he did.” 

The case of Jaszczyszyn v. Advantage Health Physician Network (2012) involved the honest defense rule and social media in a FMLA lawsuit. In this case, the plaintiff’s co-workers were “friends” with her on Facebook. These “friends” showed management pictures of the plaintiff employee drinking at a local festival at a time when she was supposed to be convalescing for several weeks due to worsening pain from a back injury. Following an investigation, the employer terminated the plaintiff for fraud. Similar to the Seeger case, the court applied the “honest belief” defense in rejecting the plaintiff’s FMLA claim reasoning that the plaintiff did not refute the employer’s honest belief that her conduct in the photos was inconsistent with her claims of total disability.

The honest defense rule is not an automatic “silver bullet” against FMLA violations; An employee may produce evidence that shows that the employer’s decisional process was not worthy of credence or other circumstances prevent applying the honest belief rule. And not all judges are equally willing to “rubber-stamp” an employer’s assertion of the “honest belief” rule because of the potential for an employer having a less than honest belief of an employee’s misconduct.

Consider for example, Judge Tarnow, a well-respected judge, wrote a stinging dissent in the Seeger case explaining why the honest belief rule should not apply:  

… the overwhelming weight of evidence supports [the employee’s] contention that [the employer’s] investigation was so poor and one-sided as to be ‘unworthy of credence’ and thus not sufficient to satisfy an ‘honest belief.’

For this reason, an employer faced with issues intersecting with FMLA leave and employee discipline should consult with an experienced employment attorney to make sure the FMLA is complied with as well as to take steps to maximize the opportunity to assert the honest belief rule in the event the employer is later sued for alleged FMLA violations. 

For more information about the Family Medical Leave Act, as well as responding to a violation of FMLA rights, contact Jason Shinn. Since 2001, Mr. Shinn’s legal experience as an employment attorney includes addressing FMLA compliance and litigation issues, as well as the full range of federal and Michigan employment law issues.