Can An Officer On FMLA Leave Work A Second Job?

Written on 11/05/2022
Will Aitchison

Patrick Lands worked as a police officer at the Raleigh Police Depart­ment from 2008 to 2019. During his employment, Lands was promoted to the rank of detective. In August 2017, Lands’s father was in a serious car ac­cident and Lands asked for permission to take time away from work to care for his father. Lands was approved to take leave pursuant to the FMLA beginning on September 13, 2017.

The City of Raleigh approved Lands to take an additional 11 months of paid sick leave, pursuant to City policy. While Lands was on leave, he provided care to his father and assist­ed with his father’s business, Total Construction. Lands did not accept any wages and was not an employee of Total Construction.

Lands returned to work on De­cember 7, 2018. The City has a policy prohibiting secondary employment while on leave. More than six months after Lands returned to work, the De­partment received a complaint about home repairs that had been left undone by Lands or Total Construction.

Eventually, the City terminated Lands after concluding that he had violated five policies because he was employed by and had conducted busi­ness for Total Construction. Lands then filed a lawsuit contending that his termination violated the FMLA.

A federal court denied the City’s motion to dismiss the lawsuit. The Court found that Lands was engaged in a protected activity when he took FMLA leave, that he suffered an ad­verse employment action, and that the adverse action was causally connected to Lands’s taking of FMLA leave. As the Court put it, “Lands has made a plausible claim that he engaged in a protected activity when he took FMLA leave. Qualifying employees are entitled to FMLA leave to care for a parent suffering from a serious health condition. Lands states that he was providing necessary medical care to his father and thus he was engaged in a protected activity when he took FMLA leave. The City argues that Lands was not entitled to FMLA leave because he was impermissibly doing other activities potentially in addition to providing care.

“Surely it cannot be true that a person taking FMLA leave is prohib­ited from doing any activity besides providing direct care. This would preclude grocery shopping for them­selves, taking their children to school, and all manner of things. Lands states that he was providing care and has stated facts that lead to the plausible inference that Lands was providing care. Accordingly, the Court finds that Lands was engaged in a protected activity when he took FMLA leave.

“The City offers no specific facts to support Lands’s termination other than his alleged secondary employ­ment with Total Construction. The City does not allege that defendant was unhappy with Lands’s job per­formance. To the contrary, Lands was promoted to the rank of detective during the course of his employment. The City lists Conduct Unbecoming as a policy that Lands allegedly vio­lated but provides no facts as to what conduct violated this policy.

“The City offers allegations that Lands misused FMLA and sick leave, but provides no allegations that Lands was terminated for unsatisfactory job performance. Lands offers facts to rebut the City’s allegation that Lands was engaged in secondary employ­ment. It appears that the City only became dissatisfied with Lands when a disgruntled citizen complained about Total Construction. Accordingly, Lands has met the burden of estab­lishing that the Employer’s proffered explanation is pretext for FMLA retaliation.”

Lands v. City of Raleigh, 2022 WL 2182167 (E.D.N.C. 2022).

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