You’ve probably read the recent articles warning employers of the dangers of basing employment actions on employees’ Facebook posts.  While this is good advice, particularly where the posted messages may constitute concerted activity under the NLRA or where the employer is considering accessing an employee’s Facebook account without authorization, there still are circumstances in which an employer may legitimately base an employment decision on an employee’s Facebook post, as the Sixth Circuit recently found this week. 

The court held that an employer did not unlawfully retaliate against a worker where it fired her for perceived fraudulent use of FMLA leave.  The plaintiff had been on leave because, as she informed her employer, back pain rendered her “completely incapacitated.”  Yet, while out on leave, the plaintiff (and a friend) posted numerous pictures on Facebook showing her drinking and dancing over a period of at least eight hours at a local festival.  Because some of the plaintiff’s coworkers were “friends” with her on Facebook, they saw the pictures, became upset by her conduct and reported it to management, who discharged the plaintiff because it considered such behavior inconsistent with her claim of total disability.  Although the plaintiff argued that an issue of fact precluded summary judgment because the photos did not accurately reflect the severe pain she was suffering during the festival, the court held that the employer had an “honest belief” that her behavior was inconsistent with her stated reason for leave and, thus, her termination was not unlawful.