Honest belief rule

What Happens When an Employer Honestly (but Mistakenly) Believes Its Employee Has Misused Medical or Family Leave? Read on

By JW Law
We’ve all heard the saying that “honesty is the best policy.” Well, what about an honest mistake? What happens when an employer discharges an employee because it honestly (but mistakenly) believes the employee has misused leave under the Family and Medical Leave Act (FMLA)? Can an honest mistake defense be enough to fend off an employee’s FMLA retaliation claim? In one word- Yes.

In a recent ruling, the Third Circuit Court of Appeals stated that an employer’s honest belief- even if mistaken- is sufficient to defeat FMLA retaliation claim.


In an article titled “Employer’s ‘Honest Belief’ Is Complete Defense to FMLA Retaliation Claim,” for the New Jersey Law Journal, Javerbaum Wurgaft employment attorney Andrew Moskowitz discussed the Honest Belief rule with regards to Capps v. Mondelez Global.

To Read the full article: Click Here

In this particular case the plaintiff employee, Fredrick Capps, suffered from Avascular Necrosis, which was a “loss of blood flow, severely limiting oxygen and nutrient delivery to the bone and tissues, essentially suffocating and causing death of those cells.” Capps developed arthritis in both hips which necessitated bilateral hip replacement in 2003. He experienced severe pain, sometimes lasting for days or weeks at times. He was continuously re-certified for intermittent FMLA leave until 2014 when his employer at Mondelez, terminated his employment for violating a policy concerning dishonesty.

Honest belief rule
The employer claimed that Capps had used FMLA leave for dates related to his conviction for driving under the influence (DUI) of alcohol. Capps argued that Mondelez: (1) interfered with his rights under the FMLA; (2) acted in retaliation to Capps’ proper use of FMLA leave; and (3) violated the Americans with Disabilities Act.

The court found that Mondelez had provided a legitimate, nondiscriminatory reason for terminating Capps. In so holding, the Third Circuit agreed that when an employee is discharged because of an employer’s “honest mistake,” employment laws “offer no protection.” The Court gave employers who purport to terminate employees because they are misusing their FMLA leave an ironclad defense. As long as the employer asserts that it “honestly believed” that the employee was misusing his or her leave, this defense is sufficient as a matter of law to defeat an FMLA retaliation claim.


The lesson from the Capps case for employees is dot your ‘i’s and cross your ‘t’s. If you are requesting a leave, make sure that you submit your documentation to your employer in a timely fashion. Respond promptly to any requests for additional information and, most importantly, do not make any false statements.

[Read Related: Javerbaum Wurgaft Attorney Andrew Moskowitz Obtains $375,000 Settlement in Age Discrimination Lawsuit]