Moonlighting while on FMLA

AngieH · January 2003

I am in the process of updating our personnel policies and am wondering about inserting a clause about moonlighting during FMLA leave (we have a regular moonlighting policy). I read about a recent court case involving an employee who went on a camping trip during his FMLA leave (he took leave to care for an ill family member), was terminated by the company, and his termination was upheld by the court. At this point, is it a good idea to insert such a policy? If so, any examples of appropriate language to use for the poicy?

Theresa Gegen TX · January 2003

I would not add it to the policy. Moonlighting while on FMLA could be acceptable in some situations -- imagine this: Employee works days and needs off to take care of sick child under FMLA. Spouse works days and can take care of child on weekend. Employee gets 2nd job on weekend for extra income while on FMLA. This would probably not be cause to fire the employee. They are using the FMLA leave for the purpose it was meant for.

I have also gotten a similar question from employers about -- Employee on FMLA goes on some vacation to somewhere warm and tropical. Can they be terminated? Again, it could depend. If the employee was on FMLA for a health condition, and the physician indicated that going somewhere warm and tropical to rest was consistent with the treatment, then it might not be abuse (I know this is hard to imagine, but stranger things have happened).

The point is that each case needs to be considered on its facts, as to whether FMLA is being abused.

You may want to put in your policy that an employee who misuses FMLA leave (for example takes it for vacation) will be subject to termination. But I think that would go without saying.

Down_the_Middle · January 2003

AngieH:
I would stay away from putting the monlighting piece in your FMLA policy. I honestly don't see the value it adds and will more than likely obligate you to having to follow what you say. I think this kind of thing is better handled on an as needed basis and s/b tailored to the exact circumstance. My 2-cents.

MS HR · January 2003

Angie,
I would love to read the court case you referred to.
Can you point me in the right direction to find it?
Many thanks,

AngieH · January 2003

I know it's awful, but I can't remember where I read it! I believe it was decided in the 9th circuit. If I come across it again, I will certainly let you know.

By the way, my first inclination was to not include moonlighting language in our FMLA policy. With the help of those of you who have responded, I was able to strengthen my argument against including this. Thank you!

Theresa Gegen TX · January 2003

Connel v. Hallmark Cards, Inc., 2002 WL 1461969, United States District Court, Kansas (June 19, 2002).

This is probably the case you are talking about. It involves an employee who "camped out" at a fair.

If you are a subscriber to your state's newsletter, you can search for and find a copy of the articles that have been written about it.

Good Luck!!

Margaret Morford · January 2003

There's another one about a nurse (I think)who couldn't work her regular job, but continued her part-time job. I don't have a cite, but I'll try to find one.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Rockie · January 2003

You can't prohibit someone on FMLA from holding another job which may be more conducive to their schedule. Example: They may not be able to work for you during the day because they have to take care of a sick mother, but they can work at Wal-Mart in the evenings because another sibling is available to watch mom at night.

I would also be very careful about restricting employees in general from "moonlighting". I think about the only restriction you can put on this is to ask that they check with you to make sure they are not working with a direct competitor.

MS HR · January 2003

Rockie,
Thanks for the analogy. You make sense. I'm sure my managers wold like it one bit, but at least I'll something to explain to them.

Galestorm · January 2003

How many employers keep close tabs on their employees on FMLA? I don't know what my people do while they are off. Some go back to Mexico for medical treatment, some go to their children's homes in Florida or elsewhere to recoup, etc. I've even had one take a cruise while off for mental health reasons.

Thanks,

Galestorm

MS HR · January 2003

Galestorm,
Tracking employees on FMLA became a concern of management as accomplishing the work of the organizational unit became a problem in that temporaries couldn't do the job and overtime for regular employees got prohibitively expensive.
In addition, we've had employees come in during FMLA looking perfectly healthy which causes a morale problem for those employees who have do work overtime to accomplish the organizational goals.
We've had other employees get married while on FMLA, job search while on FMLA, and similar events. Management gets quite upset and wants to know why we can't terminate. Anyway, that's a long-winded answer as to why FMLA-abusers have taken a good concept and have ruined it.

Moonlighting while on FMLA

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