Documenting Falsification of Time Records Rebuts FMLA Interference Claim

Houston, TX (WorkersCompensation.com) – One of the best things a company can do to avoid FMLA interference and retaliation claims is to document performance problems and policy violations when they happen.

As one case shows, such documentation can help a company defend itself should the employee later request FMLA leave—even if the request is not that much later. In Lemons v. Apache Corp, No. PE:22-CV-00002-DC (W.D. Tex 10/21/22), a senior technician for a natural gas company had no discipline or performance issues from the time he was hired in 2018 until January 2021.

In January, however, the technician’s supervisor noticed his timesheets were off. At that time, the supervisor made a note of discrepancies in the sheets. The supervisor also met with the worker face-to-face and set expectations for his time keeping moving forward.

Around the same time, the technician began having shortness of breath and swollen ankles. It turned out he had cardiovascular disease. His doctor recommended surgery. So, on April 6, 2021—around a week before his scheduled surgery—the technician notified his supervisor about his need to take FMLA leave. The HR department approved the leave within 24 hours.

Surgery was successful and the technician returned to work on July 1. About a week later, his supervisor noted more discrepancies between the time that the technician reported that he was on the jobsite and the actual time he was there.

His supervisor told HR about the issues, outlining the history of recordkeeping discrepancies, and concluding that the technician was falsifying his time sheets. Because falsifying time records violated company policy, the company terminated the employee on July 14.

The technician sued the company, alleging both FMLA interference and retaliation. Neither claim succeeded.

Interference

To prove his interference claim, the technician had to show the company interfered with his FMLA rights. Since he had the right under the FMLA to be restored to the same or equivalent position on return from leave, he could establish his claim in part by showing he was not provided such a position after returning from surgery.

The court pointed out that the technician failed to show that the company placed any roadblocks in the way of his taking leave. “In fact, Defendants processed and approved [the

technician’s] leave request in 24 hours and even visited [him] while he was still in the hospital after surgery,” the court wrote.

It’s true that he was fired just two weeks after he came back--not much of a welcome back present. But there was nothing to indicate he was fired because of his leave.

Retaliation

To establish his retaliation claim, the technician had to show, in part, that the company fired him because he exercised his FMLA rights. But the evidence showed that the company had a completely different, and genuine, reason for letting him go. “[T]he evidence shows [the company] terminated [the technician] for submitting false time sheets, bolstered by [the company’s] termination of another employee for the same reason only a year earlier,” the court wrote.

Holding that the employee failed to establish either of his claims, the court granted the company summary judgment.

Aside from promptly processing the worker’s leave request, the company did a few other things that may have helped in its defense:

• A supervisor maintained contemporaneous documentation of the technician’s policy violations. This strengthened the company’s claim that it fired him for timesheet falsification, particularly given that the documentation predated the worker’s FMLA leave.
• The company disciplined other employees similarly for similar conduct. This helped show that the company’s explanation for firing the worker was genuine, and not a pretext for retaliation.
• The company used progressive discipline. It didn’t fire him right away. Instead, his supervisor gave him a verbal warning. This tended to show that the company was not using the timesheet issue as a justification for FMLA interference or retaliation.

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