What should an employer do if it discovers an employee is performing job duties while on approved Family and Medical Leave Act (FMLA) leave?

Author: Melissa Burdorf, XpertHR Legal Editor

If an employer discovers that an employee is performing job duties while out on FMLA leave, in order to avoid the risk of an FMLA interference or retaliation claim, the employer should put an end to the work.

There are also Fair Labor Standards Act (FLSA) issues. If an employee is an exempt employee under the FLSA, he or she must be paid on a salary basis (fixed salary each workweek that does not vary regardless of the number of hours worked or the quality or quantity of work performed). However, under the FMLA, an employer is not required to pay an employee's full salary for weeks in which an exempt employee takes unpaid FMLA leave. The employer may pay a proportionate part of the full salary for time actually worked.

If all the employee does is spend a couple of minutes over the course of the week responding to general questions from the employer, the FLSA may not come into play. However, if the employee spends a significant time working while on leave, the employee might be entitled under the FLSA to a percentage of his or her regular salary proportionate to the time actually worked, but not his or her full salary for the entire workweek. State FLSA-related laws may come into play here, too.