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Think Before You Post: When A Facebook Post Comes Back To Get You!

Employers repeatedly complain they believe employees are “gaming the system” or “abusing the system” when it comes to leave policies. This often comes up when an employee is out on Family Medical Leave.  More times than not, an employer will say they believe the employee is exaggerating their condition or flat out lying, but they cannot prove it.  Social media has added a new wrinkle to this frustration.

For instance, in Sara Jaszczyszyn v. Advantage Health Physician Network, 2012 U.S. App. LEXIS 23162 (6th Cir. 2012) the plaintiff was a customer service representative (“CSR”) with a pre-existing back condition from a car accident.  As a CSR, the plaintiff spent the majority of her day talking with customers using a wireless headset sitting in a chair.  She complained that her condition was aggravated by her position and obtained intermittent FMLA leave.  She then treated the leave as continuous and open ended.

While out on leave for instance, the plaintiff attended Pulaski Days, a Polish heritage festival. During the course of eight hours, she went to three Polish halls, drank beer, and posted multiple photos of the festivities on Facebook with her friends.  From the festival, she also called her supervisor to report she was in pain and would not be at work on Monday.  Unfortunately for Ms. Jaszczyszyn, she was “friends” with multiple co-workers on Facebook, and they all saw the photos.  Frustrated that she was out partying while they were covering for her at work, they reported the photos to management.  The Company brought Ms. Jaszczyszyn in and asked her about her leave.  During the conversation, she claimed she was completely incapacitated.  The Company confronted her with the Facebook photos and ultimately terminated her employment.  Ms. Jaszczyszyn sued the Company and asserted claims for FMLA interference and retaliation.

The district court granted the employer’s motion for summary judgment, and the Sixth Circuit Court of Appeals affirmed. The Sixth Circuit held the employer “rightfully considered workplace [FMLA] fraud to be a serious issue” and terminating Jaszczyszyn for her dishonesty constituted a non-retaliatory basis for her discharge.

This case highlights how Facebook postings can produce valuable evidence for employers in discrimination cases. It also demonstrates the importance of reading an FMLA certification closely.  Here, Jaszczyszyn was approved for intermittent leave when she had flare ups.  Instead, she took continuous leave for days on end and the employer did not challenge the leave.

Before employers decide they are the next Sherlock Holmes, they should take this case with a grain of salt. While the results worked to the advantage of this employer, in other situations it might backfire.  For instance, the National Labor Relations Board has issued guidance relating to the proper and improper use or review of a employee’s Facebook posts. It is easier for employers to run afoul of social media issues than you might expect!

Brody and Associates regularly provides counsel on the FMLA, as well as employment law issues in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.