Employers Can Use a Private Investigator to Verify Appropriate use of FMLA Leave

May 2, 2022

While many employees legitimately need and appropriately use Family and Medical Leave Act (FMLA) leave, there are some who abuse it. The FMLA itself does provide some limited recourse (mostly in terms of certifications and recertifications) for employers to question overall patterns of use. Yet, it does not really address specific incidents of intermittent leave use. So, what can employers do? One option is to hire a private investigator to monitor employees on FMLA leave.



In a recent case, an employee was granted intermittent FMLA leave to care for her son, who had several serious mental health conditions. The employee took significant and increasing amounts of FMLA leave each year. She also took other (non-FMLA) unscheduled days off that resulted in an attendance warning. After hearing from multiple co-workers that the employee might not be using FMLA leave appropriately, and realizing that many of her unscheduled FMLA days off were in conjunction with weekends or approved days off, the employer decided to hire a private investigator to follow her on three of her FMLA days.


Rather than caring for her son, the employee was seen in public running personal errands and engaging in several leisure activities. Not surprisingly, the employee was terminated for FMLA abuse, as confirmed by video surveillance tapes. In her suit against the employer, the employee argued that the employer-initiated surveillance, without a reasonable suspicion that she had abused FMLA, was illegal. The U.S. Court of Appeals for the Third Circuit treated that argument with skepticism, finding that “nothing in the FMLA prevents employers from monitoring employees’ activities while on FMLA leave to ensure that they do not abuse their leave.”


Although from a different circuit than Massachusetts or Connecticut, this case serves as a friendly reminder, to employers and employees alike, that an employer can hire a private investigator to confirm whether an employee is using FMLA leave appropriately. And if the employee is caught behaving in a manner that is clearly inconsistent with the stated reason for the FMLA leave, then they can take appropriate disciplinary action – up to and including termination.


If your business has any questions about this topic, or any other employment issues, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

By The Royal Law Firm September 15, 2025
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By The Royal Law Firm August 19, 2025
Employers regularly wonder: “Can I fire someone for that?” You might assume the answer is simple, especially in an at-will state like Massachusetts. But the reality is more complex. Missteps can land your business in court. Here’s how to avoid them and keep your company focused on growth, not litigation. Myth: “At-Will Means Any Reason Goes” At-will employment allows termination without contractual cause. Yet anti-discrimination laws and retaliation protections still apply. Even a valid reason, like poor performance, becomes risky if the employee recently complained about harassment, requested an accommodation, or reported a safety issue. Terminating soon after a complaint invites legal trouble. For example, consider firing Sarah for repeated tardiness. But what if she reported sexual harassment a few weeks earlier? Timing alone can create exposure. Document performance issues as they arise. Also, check if the employee recently returned from Family and Medical Leave (FMLA) or Paid Family and Medical Leave (PFML). A Springfield auto repair shop faced a claim after firing a worker the day after he returned from PFML to care for his newborn. The company blamed tardiness, but the timing triggered months of legal headaches. Myth: “No Documentation Needed” Some employers assume that no paperwork is necessary under at-will rules. That approach creates unnecessary risk. Without records, even lawful firings appear questionable. Weak evidence damages credibility. Imagine Tom, a low performer who never received formal feedback. If you fire him after years of positive reviews, expect scrutiny. Always provide timely written warnings and accurate performance evaluations. Keep emails, attendance records, and coaching notes. Would your records persuade a jury that the termination was justified? Myth: “We Treated Everyone Fairly” Fair treatment requires consistency. If one employee is fired and another is only warned for the same violation, questions follow. Consider two salespeople, Mike and Jose, both caught inflating sales numbers. Mike receives a warning. Jose gets fired. If Jose claims racial bias, inconsistent discipline strengthens his argument. Review prior disciplinary decisions. Can you show a clear record of equal treatment? Myth: “We Can Share the Reason Widely” Managers sometimes explain a termination too broadly, believing transparency protects the company. In reality, public disclosure creates legal risk. An employee fired for theft sued his employer after leadership announced it to the entire staff. Even truthful statements, shared excessively or with ill will, can spark defamation claims. A local example: a Chicopee retailer emailed all employees naming a worker fired for alleged cash shortages. That email became Exhibit A in court. Limit disclosure to those who truly need to know. Avoiding Retaliation Claims Retaliation is the most common EEOC claim. Firing someone after they complain about discrimination, request leave, or raise pay concerns often leads to lawsuits. Subtle actions can count too—cutting hours, assigning undesirable shifts, or excluding them from meetings. Did Lisa report a wage issue last week? If she now gets the worst shifts, her attorney will call it punishment. Train managers to pause and ask: “Does this look like payback?” In one Springfield restaurant, a server who complained about tips was fired days later for “attitude.” The MCAD viewed the timing as retaliation, and the case settled quickly. Managing the Termination Meeting Professionally How you fire someone matters. Keep the meeting short and calm. Speak plainly. Avoid debate. Bring a neutral witness, usually HR. Disable system access and collect company property immediately. For remote workers, coordinate IT to end access during the call. Have you prepared your team to stay composed when an employee gets angry or upset? A concise, professional exit reduces emotion and litigation risk. Reducing Risks Before They Occur You can prevent most legal problems with proactive steps. Train managers to document consistently. Encourage employees to raise concerns early, and respond appropriately when they do. Also, follow Massachusetts requirements: final wages and accrued vacation must be paid promptly, sometimes the same day. Missing or delaying a payment can trigger penalties. Review whether your managers apply standards uniformly. Track disciplinary trends by department or supervisor. In one Holyoke warehouse, inconsistent discipline across shifts led to multiple claims that could have been avoided with routine audits. Quick Pre-Termination Checklist Document the issue in writing. Confirm whether the employee recently exercised protected rights (complaint, FMLA, PFML, workers’ comp). Ensure similar cases were handled consistently. Complete a fair investigation and allow the employee to respond. Prepare final pay and unused vacation in compliance with Massachusetts law. Bottom Line Employee terminations happen. Legal trouble does not have to. Careful documentation, consistent actions, and thoughtful communication protect your business. Before acting, stop and ask: have we done this right? Taking these steps helps you confidently answer, “Can I fire someone for that?” That answer should never rest on guesswork. Michael P. Lewis, is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP , a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288. Michael P. Lewis wrote this article which was featured in BusinessWest. Click here to visit their website.