No problem firing employee for gambling binge while on FMLA leave

It was a roll of the dice that paid off for one employer, who investigated an employee’s FMLA absences and caught him on a gambling binge. The employee was taking intermittent leave for depression, migraines and stress. For several days in a row, the employee called in and said that he was too depressed to work. His supervisor visited the employee’s home to assess the situation and found him absent. Suspecting that he might be indulging his gambling addiction, the supervisor made some calls to various Atlantic City casinos and eventually located the employee. The employee was terminated for abusing the company’s sick leave policy and lying about his reason for leave, but he creatively argued that the company interfered with his FMLA rights because gambling was helping to treat his depression. Not surprisingly, the court didn’t buy it. The employee had called into work only one hour before each shift to ask for time off, claiming that it wasn’t until that very moment that he knew he was too depressed to work. But the court found it significant that the drive from Atlantic City was over four hours long, showing that the employee had no intention of trying to work well before he called in. Additionally, the court didn’t believe gambling was helping the employee to treat his depression and, in fact, found evidence to show that it was actually making his condition worse. Notably, the court concluded that gambling is not a proper use of FMLA leave (Campbell v. Verizon, ED Virginia, Sept. 2011).

Tips: Terminating an employee for activities that are seemingly inconsistent with FMLA leave requires close scrutiny on a case-by-case basis. Don’t assume that an employee is lying about their FMLA leave or underlying condition if they are taking vacations or enjoying themselves during leave. While this employee crossed a line with excessive gambling, it may be difficult to tell where proper FMLA leave ends and abuse of the system begins. Contact your Vigilant staff representative to discuss any specific situations before taking disciplinary action.

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