Caught Fibbing About FMLA Leave? It Might Be the Vacation Photos That Did It

By Eric B. Meyer

If you take leave under the Family and Medical Leave Act, go on vacation, and then post your pictures on Facebook, the odds are that your employer is going to find out about it.

Why? Because your co-workers, the ones you friended on Facebook, but who really aren’t your friends, are going to snitch on you faster the Road Runner on Wile E’s Acme Rocket Skates.

And, if a company learns that an employee on FMLA is really on vacation. Well, that tends to negatively affect both his future employment prospects and the likelihood of a successful FMLA lawsuit.

Social media catches another employee

Kinda like the plaintiff in this case (Jones v. Gulf Coast Health Care of Delaware), who posted pictures on Facebook of a trip to Busch Gardens while on FMLA leave. Then, after he failed to furnish a timely fitness-for-duty certification, but received some extra non-FMLA leave to complete physical therapy, he doubled down by posting pictures on Facebook of a trip to St. Martin.

So, when the company learned about the photos and fired the employee, he claimed FMLA retaliation. And the court was like…

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Plaintiff does not show that he was fired for exercising his right to take FMLA leave. Plaintiff’s actions while on FMLA leave and on non-FMLA led to his termination. There is no evidence that Plaintiff was retaliated against for requesting and taking FMLA leave. An employer “may terminate an employee for a good or bad reason without violating federal law. [Courts] are not in the business olegdjudging whether employment decisions are prudent or fair.”

Give them chance to explain

In other words, if employer fires an employee based on its good-faith, honest belief that an employee is abusing FMLA leave, that does not violate the FMLA. But before you go that route, don’t deprive yourself of the guilty pleasure of confronting the employee with the Facebook evidence.

Seriously though, it does make sense to give the employee a chance to explain. A bad explanation or no explanation at all — as was the case in the above example — further supports the termination decision.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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1 Comment on “Caught Fibbing About FMLA Leave? It Might Be the Vacation Photos That Did It

  1. Firing someone for Facebook posts better have an incredible amount of thought put into it. As someone who went through a prolonged leave myself, I was incapable of performing my work duties and still *had a life* and some of the things I did were indeed fun and distracting to get my mind off of things.

    Taking care of yourself includes body, mind, and spirit. Most employees and work peers will not have any idea what an FMLA leave is for. In my case most of my direct and indirect supervisors had no idea what it was for, while my immediate peers only knew I was out on prolonged leave.

    After reading the mentioned court papers it actually looks like his legal council was completely unaware of proper defense techniques around his employment and failed to properly identify / argue what the organizations social media policy actually defined. Specifically he should have filed his case around rights to employee monitoring, data access, privacy, and/or possible discrimination of the activities as compared to the organizations published (and agreed upon) social media policy.

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