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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.

Massachusetts’ Superior Court Judge Rules Recording in Workplace Admissible

February 19, 2025
The Massachusetts Superior Court found that Massachusetts’ wiretap statue does not bar employers from using allegedly illegally obtained recordings in civil proceedings. In a recent case, an employee claimed she was forced to resign. Plaintiff’s coworker recorded an argument between the Plaintiff and her supervisor without her consent and shared it with supervisors. The employee then sued for discrimination and retaliation, along with two counts for violation of the wiretap statute. Massachusetts is a two-party consent state but, in this case, it was found that the consent of only one party was needed because nothing in the Wiretap Statute bars the use of an allegedly illegally obtained communication in a civil proceeding. The court found that the provisions about the use of illegally obtained communications in evidence are limited to criminal trials. However, depending on the court, results may differ, as this recording was central to proving and/or disproving the Plaintiff’s claim, and as such, the recording was indispensable as a piece of evidence. Issues with unauthorized recordings have been arising all the time in civil proceedings because recording devices are everywhere, whether they be a cell phone, laptop or other recording device. This ruling is good for employers, as if there is an otherwise inadmissible recording that is made that disproves an employee’s claims, it can be admissible as evidence if meets the same scenario above. However, employers must be careful to use these recordings as they may be inadmissible and may not show the same thing that the employer believes in the court’s eyes. This being said, it is prudent to consult an attorney before utilizing a recording for any employment action or in legal action to avoid unwanted consequences. 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.

After the DEI Executive Order

February 14, 2025
What Are the Compliance Requirements for Private Employers?
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