I always love a good social media FMLA smack down. It’s even better when the employer handles the situation in textbook fashion. Today’s installment offers both, while also providing a road map for employers when investigating suspected FMLA abuse.
Let me share the story of Rodney.
Rodney was the activity director for Accentia Health, a local long-term care facility, and in that role, he was responsible for overseeing a staff which decorated the facility for holidays and events, and oversaw outings, parties and recreation for patients. Not a bad gig, if you can find it.
Rodney also had a bum shoulder. He took 12 weeks of FMLA leave for shoulder surgery and recovery, but he still was not able to return to work. For good measure, his doctor recommended one more month off work, and Accentia happily obliged. They called the additional month a “non-FMLA” leave of absence. As the story goes, during the final days of FMLA leave and during the month of his “non-FMLA” leave, Rodney took multiple trips to Busch Gardens in Florida and to the island of St. Martin, posting photos of his escapades on social media along the way. Rodney’s treasure trove of Facebook photos consisted of his favorite Busch Garden holiday decorations, and photos and updates about his trip to St. Martin, including some photos of him on the beach, posing by a boat wreck, and swimming in the ocean — all at the very time he should have been recuperating.
Swimming in the ocean? That shoulder must have been feeling pretty darn good.
It’s not surprising, of course, that Rodney’s employer later terminated his employment after he posted these photos. Also understandable was the court’s quick dismissal of Rodney’s FMLA claims. Indeed, who could have counseled Rodney to sue here, knowing that he had engaged in this behavior? Click here for the court’s take on Rodney’s Facebook photos and its quick dismissal of his FMLA claims: Jones v. Gulf Coast Health Care of Delaware d/b/a Accentia Health and Rehab of Tampa Bay (pdf)
Insights for Employers
The result of this case in favor of the employer is not surprising. What’s instructive to us, however, is how the employer handled Rodney’s situation to best defend itself against an FMLA claim:
1. No Rush to Judgment: When the employer learned of Rodney’s Facebook posts, it did not rush to judgment and terminate Rodney on the spot. Rather, it conducted a complete investigation of the facts at issue. Specifically, it invited Rodney to discuss his leave of absence. During the meeting, Rodney’s boss confronted him with the Facebook photos in search of an explanation. When Rodney responded with silence, it supported the employer’s honest belief that he had abused FMLA leave.
For what it’s worth, I would have counseled the employer here to be even a bit more methodical in its investigation of Rodney’s conduct. Before confronting Rodney with the Facebook pics, I first would have addressed the following with him:
- Confirm that he required additional leave through the present because he was unable to perform his job
- Confirm with him the extent of his injuries that he believed prevented him from performing his job
- Ask him to confirm that he understood the requirements of the FMLA policy and how seriously the employer took fraudulent use of leave
- Confirm that he remained in the local area during his FMLA and non-FMLA leave (whether he lies or tells you the truth that he took trips out of town, you get a good answer for your investigation)
- Disclose that you have received information indicating that he was out of town during his leave, and specifically, Busch Gardens and St. Martin
- Show him (or explain to him) the Facebook entries and photos so that he can address them directly
Simply put, employers lose these “honest belief” FMLA cases when there is a rush to judgment. Don’t do it. Follow the script above.
2. The Employer used its social media policy to its advantage: Notably, Accentia maintained a social media policy which stated, in part: “I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of [Accentia] or violates the HIPPA privacy law may result in disciplinary action up to and including termination.”
Then, it used this policy as a basis for terminating Rodney’s employment, since his Facebook entries were entirely inconsistent with the policy. Makes complete sense. This case is a reminder that it is critical for employers to maintain an effective social media policy, which among other things, includes strong language to address FMLA abuse that arises in situations like these.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2014) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.