“I see the bad moon arising,
I see trouble on the way,
I see earthquakes and lightning,
I see bad times today.”
From “Bad Moon Rising” by John Fogerty,
© John C. Fogerty and Concord Music Group
Maybe Mr. Dietrich should have listened to some Creedance Clearwater Revival before deciding to work for his landscaping business while on Family and Medical Leave Act (FMLA) leave from his primary job.
What is Moonlighting?
“Moonlighting” in the context of employment does not refer to the (apparently) popular mid-1980’s ABC comedy/drama (“dramedy”) of the same name, starring Cybill Shepherd and the newlydiscovered Bruce Willis. For employment purposes, “moonlighting” refers to employees working at another job while he or she is taking leave under the FMLA. Moonlighting is another form of FMLA abuse and is no different from the employee who fakes a serious medical condition to obtain FMLA leave. Perhaps more importantly, moonlighting can occur even when an employee may otherwise be entitled to FMLA leave. The employee’s right to FMLA leave does not permit them to use that time for another employer’s benefit. Employee abuse of the right to leave under the Family and Medical Leave Act is a constant threat that employers must be aware of and monitor.
A recent court decision provides a good illustration of the “moonlighting” phenomena and affirms the right of employers to discipline those employees who abuse the provision of leave under the FMLA.
A landscaping business, on the side
Robert Dietrich was an operating room technician who was employed at Susquehanna Valley Surgery Center (SVSC) from 2003 through 2009. He also suffered from hemophilia. SVSC was aware of Dietrich’s condition and provided him time off to address complications arising from the disease. Dietrich agreed that he was permitted to take time off and be absent because of his condition, but complained that SVSC also disciplined him for taking time off. Because his days off fell on work days immediately prior to and following the weekend, SVSC contended that many of Dietrich’s absences were suspicious.
During his employment with SVSC, Dietrich had been disciplined numerous times for attendance issues; however, prior to his termination his attendance had improved, and his performance review approximately six months prior to his termination rated his attendance as satisfactory.
While employed at SVSC, Dietrich ran his own landscaping business ontheside. About a week prior to his termination, Dietrich began installing a patio for one of the doctors affiliated with SVSC. The project was a “rush job” that needed to be completed by the next weekend. Dietrich called his supervisor the day before he was to return to work on Monday and informed his supervisor that he was suffering from an internal bleed and would miss work that Monday. He called his supervisor again on Monday to tell him he would be absent on Tuesday because he needed to wait on the delivery of additional medication. Dietrich also claimed that he called and informed his supervisor that he would be absent on Wednesday; however, SVSC denied that it ever received notification from him about a Wednesday absence.
Patio work gets him fired
Dietrich did not report to work at SVSC on Wednesday; rather he went to the doctor’s home to work on the patio project his landscaping company had been hired to complete. He claimed he did not perform any physical labor, but merely supervised his part-time employee. Upon discovering that Dietrich did not report to work on Wednesday, a representative of SVSC, who had heard from the doctor that. Dietrich was installing a patio at his home, observed. his landscaping truck near the home and saw. Dietrich outside the home. Dietrich called and informed his supervisor that he would be absent from work on Thursday but that he would return Friday. Dietrich was suspended indefinitely on Thursday, and the following Monday he was terminated for his absence on the previous Wednesday and for working for his landscaping company while on FMLA leave.
Employer can discipline for moonlighting
Dietrich claimed his termination was based upon his hemophilia in violation of the Americans with Disabilities Act and FMLA. The court, however, rejected Dietrich’s claim, finding the employer had a legitimate, non-discriminatory reason for terminating Dietrich. The court focused on the fact Dietrich admitted that he was working on behalf of his landscaping company on the day he was absent from his job at SVSC. In finding in favor of SVSC, the court stated:
Any employee, regardless of his or her disability or lack thereof, might reasonably expect their employer to take disciplinary action if he or she is absent from work and found to be instead engaging in some other side business. This is especially true if the employee failed to notify his or her employer of the impending absence, but such behavior can reasonably be seen as dishonest and worthy of discipline even if an excused absence was requested.
Notably, the court was not concerned with whether Dietrich’s absence was excused or unexcused. The court found that the disciplinary action was warranted when an employee is absent from work to engage in a side business. The court characterized such behavior as dishonest and worthy of discipline.
This decision affirms that employers are not helpless when it comes to combating FMLA abuse. An employee’s right to FMLA leave does not permit them to use that time to work for another business. This is especially true where the employee has lied or been dishonest about his or her need for FMLA leave. The purpose of FMLA leave is to permit an employee to attend to a serious medical condition or disability without fear of losing their job. The leave provisions under FMLA do not permit employees to protect one job while working at another. Employers need to be vigilant about policing employee leave provided under the FMLA, and the Dietrich decision affirms the right of employers to discipline the employees it discovers are abusing their right to leave. An employer can further strengthen their position if they have in place a policy expressly prohibiting moonlighting.