Friday, November 9, 2012

Facebook Party Pics Doom FMLA Claim - COTW #117

Let's say an employee has a note from her doctor about periodic flareups of excruciating back pain. These flareups leave her "completely incapacitated." So, she takes FMLA leave and then her employer fires her. Sounds like a pretty good FMLA interference and/or retaliation claim, right?

Not so fast! This is the Case of the Week so you know there's a twist. The case is Jaszczyszyn v. Advantage Health Physician Network from the Sixth Circuit. Where does the case go wrong? Where else? Facebook:
About five weeks into her leave, several of her coworkers saw pictures of her drinking at a local festival on Facebook . . . . Because Jaszczyszyn was "friends" with several of her coworkers . . . on Facebook, the pictures were visible to them. One of those coworkers, upset about the behavior she believed was pictured therein, brought the photographs to Bentley’s attention. Bentley noted that "[o]ther staff members on the floor that were also friends with Sara felt a little betrayed or duped by Sara because they were trying to cover for her only to see her out on Facebook partying."
I know, I know - you want to see the pictures. Here they are, courtesy of Eric Meyer.

The employer conducted an investigation and formed an "honest belief" that the employee had committed fraud prior to terminating her. "Honest belief" is the catchphrase that shields the employer from liability - even if its honest belief later turns out to be mistaken. And that's the game folks. Summary judgment for the employer.

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