How Facebook Photos of Drinking Ruined an Employee’s FMLA Claim

By Eric B. Meyer

About a year-and-a-half into Sara Jaszczyszyn’s employment with Advantage Health Physician Network, she began taking intermittent FMLA leave for back pain that which she stated left her “completely incapacitated.”

About five weeks into her leave, several of her coworkers saw pictures of her on Facebook consuming adult beverages at a local Polish beer festival. (Although she doesn’t appear to be “completely incapacitated,” she does appear to be having a good ol time, doesn’t she?)

Yadda, yadda, yadda, Advantage Health fires Ms. Jaszczyszyn and she claims FMLA retaliation.

All that is needed is an “honest belief”

Who wins? That’s easy.

Remember folks: An honest belief is all it takes to fire a suspected FMLA abuser. That is, so long as the employer truly believes in its reason for terminating an employee on FMLA — and that reason is not FMLA-motivated —  the employer wins even if its reason is ultimately found to be mistaken, foolish, trivial, or baseless.

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As the Court explained (in this opinion from Jaszczyszyn v. Advantage Health Physician Network), Advantage Health wins:

Advantage “rightfully considered workplace [FMLA] fraud to be a serious issue,” and its termination of Jaszczyszyn because of her alleged dishonesty constituted a non-retaliatory basis for her discharge.

While Jaszczyszyn relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage’s justification as pretextual, Advantage’s investigation was adequate and turned in large part on Jaszczyszyn’s own behavior at the termination interview, which she does not address at all. She did not refute Advantage’s honest belief that her behavior in the photos was inconsistent with her claims of total disability. Thus, as a result of her fraudulent behavior, her claim of FMLA retaliation fails.”

“Honest belief” does not preclude an HR investigation

A word of caution to employers: Don’t use the “honest belief” rule as a reason not to investigate suspected FMLA fraud.

Advantage Health did the right thing. After it learned about the Facebook photos, it investigated by, among other things, allowing Jaszczyszyn to explain the discrepancy between her claims and the photos. But Jaszczyszyn repeatedly failed to respond at all, let alone offer such a justification. So Advantage Health fired her.

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 (, 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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