Facebook Pictures of Employee Socializing at Local Festival Drown Her FMLA Claims

by Franczek Radelet P.C.
Contact

beer_of_the_month.jpgEmployers and fellow FMLA nerds, consider this an early holiday present: Courts are increasingly dismissing FMLA claims when they find that the employer has an honest belief that the employee has engaged in FMLA fraud.  

This is a longer than usual post, but hang with me, as I share some best practices below.  

Take the situation of Sara Jaszczyszyn.  (We'll call her Sara, for short.)  Sara worked for Advantage Health Physician Network as a customer service representative where she spent most of her day talking with customers by telephone.  As the result of a car accident several years earlier, Sara experienced back pain, which began to worsen shortly after her employment started. 

Sara first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four "flare ups" per month and that each flare up could last anywhere from a few hours to a few days.  When they occurred, Sara could not perform all of her job functions.

After obtaining this certification, Sara took it as carte blanche to remain absent for a continuous, open-ended period of time.  After early September, Sara remained absent.  

While Sara was on FMLA leave, she attended "Pulaski Days," a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara's co-workers weren't amused, since they "were covering for her" (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren't, several of Sara's co-workers complained to their boss, who then viewed the Facebook pictures.  

We know how this story ends, right?  Indeed!  Days later, Sara's employment was terminated.

Sara's FMLA Claims are Dismissed because the Employer Flawlessly Handled the Situation

After her termination, Sara filed FMLA interference and retaliation claims against Advantage. However, these claims were quickly dismissed.  

Why?  Because the employer responded precisely in the manner it should.  

After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was "completed incapacitated."  

Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her "complete incapacitation" and the Facebook photos.  Sara's response?  She "was in pain at the festival and was just not showing it."  After that excuse failed miserably, her next response was telling.  You guessed it: silence.

Insights for Employers

What must an employer establish when it terminates an employee for FMLA abuse?  That it had an honest belief the employee was engaging in fraud.  In other words, it must show that it reasonably relied on the particular facts at issue, even if the employer is later proven to be mistaken in its belief.  An employer effectively advances this defense only when it conducts a complete and exhaustive investigation into the alleged facts.  

Here, Advantage's investigation served as Defense Exhibit A in dismissing Sara's FMLA claims because it was able to show that it conducted a complete and exhaustive investigation into the facts at issue.  Look above at Advantage's investigation: it confirmed the scope of Sara's need for FMLA leave; it asked Sara explain in her own words what her limitations were; it had her acknowledge the importance of combating fraud in the workplace; and then, after obtaining these admissions, it lowered the boom by introducing the Facebook pictures.  At that point, did Advantage really even need to inquire further?  Sara's underwhelming response when faced with the pictures was evidence enough.  See the court's opinion in Jaszczyszyn v. Advantage Health Physician Network (pdf) here.

I regularly remind my clients: even when you have have caught an employee red-handed in fraud or inappropriate conduct, there is absolutely no substitute for a complete and exhaustive investigation into the facts.  Why?  Courts and juries insist on it.  It simply is human nature to assume that all employees will be afforded some level of due process -- i.e., the chance to respond to the allegations and defend themselves -- before a termination decision is made. When employers don't afford an employee this opportunity, the risk of litigation and an adverse ruling increases significantly.  Follow Advantage's lead, and set yourself up for a strong defense.

Still interested in how an employer can effectively advance an "honest belief" defense?  We'll cover this topic head on during our December 6 webinar, which you can register for here.

By now, you're really interested in seeing Sara's Facebook pics, aren't you?  Eric Meyer of the Employer Handbook has them here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!