Was it OK to contact a woman accused of theft while she was still on approved leave?

“We contacted Paula while she was on leave because we thought she was embezzling funds from us,” said Supervisor Nathan Hawkins. “That seems like a legitimate reason to reach out to someone, if you ask me.”

“I hope you’re right,” said HR Director Carolyn McGill, “because Paula just filed a lawsuit against us, claiming that we interfered with her rights under the FMLA, the Family and Medical Leave Act. How many times did we communicate with Paula while she was on leave?”

“I couldn’t give you an exact number,” said Nathan, “but it was probably about 10 to 12 times in total, if you count calls, texts and emails.”

“Why did we call, text, or email Paula so often while she out?” asked Carolyn.

“Right after Paula started her leave, we noticed some discrepancies in our cash on hand,” said Nathan, “so we contacted Paula and asked her to explain why we were short about $1,500.”

“What did Paula say?” asked Carolyn.

“Paula said it would be much easier for her to explain things in person, but she couldn’t do that because she was on leave,” said Nathan.

“Yes, that’s right,” said Carolyn. “Once a person takes leave, she’s out of the loop.”

“In this case, the contact was justified,” said Nathan. “We couldn’t just ignore the fact that we were short on cash, then wait until Paula returned from leave to find out what was going on.”

“What did we learn about the missing funds?” asked Carolyn.

“As we suspected,” said Nathan, “the evidence indicated that Paula had probably stolen money from us.”

“So what happened when Paula returned from leave?” asked Carolyn.

“As soon as she came back, we told her to go out again, this time on paid administrative leave,” said Nathan. “We dismissed her a short time later.”

“Did we ever give Paula a chance to justify the missing funds?” asked Carolyn.

“We offered her an opportunity to explain herself,” said Nathan, “but she refused to talk to us unless her lawyer could be there because she feared criminal prosecution. We didn’t want a lawyer involved, so Paula never had a chance to rationalize the cash shortfall.”

“It sounds like we were justified in contacting Paula while she was on FMLA leave and then firing her when she returned,” said Carolyn. “We’ll challenge her lawsuit.”

Result: The company lost. The court said the woman could proceed with her FMLA interference case. The judge noted that the FMLA forbids employers from contacting workers while they’re on leave.

While the law lets supervisors reach out to people on leave in a limited number of circumstances, e.g., to clarify something that the person was working on or to get an update on the employee’s return-to-work time frame, it doesn’t allow companies to continually contact people, no matter how important the problem might appear to be.

Here, the judge noted that the woman was contacted by phone, text, or email between 10 and 12 times, which is much more than the minimal level of interaction envisioned under the FMLA.

Even though it might appear it was OK to contact the woman because of the gravity of the situation – alleged financial misdeeds – the court ruled that the company needed to wait until she returned to the job to speak with her.

Cite: Smith v. School Board for the City of Norfolk, U.S. District Court, E.D. Virginia, No. 2:21-cv-138, 11/5/21.

(From the March 4, 2022, issue of HR Managers Legal Alert for Supervisors. To start your no-obligation trial subscription to the publication right now, please click here.)