Facebook may not always be an employee's "friend"...

From time to time, employers may suspect that an employee is abusing FMLA leave.  In such instances, the challenge becomes obtaining sufficient evidence on which to prove that the employee has engaged in such abuse, knowing that any decision to deny FMLA leave or discipline an employee for FMLA abuse will be subject to challenge.

In a recent decision,  Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697, 2012 U.S. App. LEXIS 23162 (6th Cir. Nov. 7, 2012), the Sixth Circuit determined that the employer had adequately supported its determination that the employee had abused FMLA leave.  The source of proof?  Facebook photos published by the employee.

In Jaszczyszyn, an employee took intermittent leave under the FMLA for pain associated with a prior back injury.  The certification submitted by the employee’s physician stated that the pain caused her to be incapacitated, such that she could not report to work when having a flare up.  While on leave, the employee attended a local Polish heritage festival.  Over the eight-hour period the festival ran, the employee was photographed visiting various Polish Halls with friends.  When those 127 photos surfaced on Facebook and were discovered by the employee’s coworkers (her Facebook friends), Advantage Health took steps to investigate. 

Advantage Health met with the employee to discuss the exact limitations imposed by her medical condition and confirm that the pain rendered her incapacitated and unable to work.  It then questioned her about the Facebook photos.  The employee did not deny engaging in the conduct and did not dispute that the photos painted a picture quite unlike that presented in her medical certification.  Because the employee could offer no satisfactory explanation for her conduct, Advantage Health terminated her employment.

The Court of Appeals for the Sixth Circuit granted summary judgment to the employer on both the FMLA interference and retaliation claims.  With respect to the retaliation claim, the Sixth Circuit agreed with the district court that the employer had an honest belief that the employee’s behavior was fraudulent, and the employee did not present any evidence that the employer has acted for any other reason. 

The lesson for employers?  Despite seemingly obvious evidence of the employee’s misrepresentation of her serious health condition and apparent fraud in using FMLA leave, the employer conducted a thorough investigation, confirmed the employee’s position with respect to the status of her medical condition and gave her an opportunity to defend herself.  Because the employer did not rush to judgment, it was able to support its decision and convince a court to uphold it.