Out on FMLA leave, she posted Facebook pix of herself partying

by on February 11, 2013 · 0 Comment POSTED IN: HR Cafe
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“These are the pictures I’m talking about, on your Facebook page,” supervisor Carla Brunell said, turning her computer monitor so employee Stacy Burlingame could see the screen. “There: that one of you dancing, and the one of you throwing a Frisbee.”

“Do those look like photos of somebody who’s in so much back pain that she can’t come to work?” Carla asked accusingly.

Stacy remained silent.

“Well, come on, Stacy,” Carla said. “We agreed to your FMLA leave on the basis of a doctor’s note that your back wouldn’t let you work for at least three weeks. If you can party, you can work, can’t you?”

At the festival
“I don’t deny that I went to the outdoor music festival in the park last weekend,” Stacy said. “A friend took these pictures and I posted them on Facebook.”

“But there were times when I was in pain, and had to lie down on the grass,” Stacy continued. “Nobody took any photos of me then.”

“And besides, how did you manage to see these? Did you snoop on me?”

“Not at all,” Carla said. “One of your co-workers who’s a Facebook friend of yours noticed the photos and brought them to my attention. And in case you’ve forgotten, you made me one of your Facebook friends, so I have completely legitimate access to this page.”

“What co-worker?” Stacy asked.

Fraudulent intent
“That’s not important,” Carla said. “What is important is the fact that we take fraud very seriously in this company. By claiming your back was incapacitated enough to take FMLA leave, and then engaging in activities like these, you’ve shown that you don’t take it seriously. In fact, I’d say these pictures clearly show fraudulent intent on your part.”

“So I checked with HR, and they agree that we have no choice but to terminate you with immediate effect,” Carla concluded firmly.

“You can’t accuse me of fraud and get away with it!” Stacy cried. “I’m going to talk to a lawyer!” Stacy sued the company, claiming it retaliated against her for exercising her FMLA rights. Did she win?

The Decision
No, Stacy didn’t win her FMLA retaliation case.

The court said supervisor Carla honestly believed that Stacy’s behavior in the Facebook photos was inconsistent with her claim to be incapacitated by her back pain. And Stacy did nothing to rebut Carla’s belief. All she did was claim, without evidence, that she’d been in pain at times at the music festival.

What you can do
Although employees do have legal protection for some social media posts – notably good-faith complaints about work conditions – you aren’t obliged to ignore social media material that demonstrates illegal behavior or violations of company policy. Just make sure to check with HR before you take action.

Cite: Jaszczyszyn v. Advantage Health Physician Network, No. 11-1697, 6th Cir.,

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