Spying Employers Raise Legal Hackles

Source: Tresa Baldas, The National Law Journal, August 19, 2008

A growing number of employers are hiring private investigators to spy on employees suspected of taking leave dishonestly under the Family Medical Leave Act.

Management-side attorneys claim that FMLA abuses have gotten out of hand, and employers need a tool — in this case surveillance — to catch malingerers using FMLA improperly. And it’s been pretty successful, they said, noting that private investigators in recent years have helped catch employees bowling, doing yard work or holding second jobs when they’re supposed to be out on sick leave.

Employee-rights attorneys, meanwhile, view surveillance as harassment, intimidation and an interference with a worker’s right to take FMLA leave. It also has a chilling effect on other employees who may not take the leave for fear of being spied on.

Both sides, however, note that the courts appear to be siding with employers.

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