The Sixth Circuit Court of Appeals recently upheld the dismissal of an employee’s FMLA interference and retaliation claims following her termination for FMLA fraud, as shown by pictures posted on Facebook. Jaszczyszyn v. Advantage Health Physician Network (6th Cir. 2012). Jaszczyszyn, a customer service representative, was on FMLA leave for back pain that left her “completely incapacitated,” according to doctor’s notes, when she posted pictures on Facebook of her attendance at a local heritage festival for at least eight hours with her friends. Several of her co-workers and her immediate supervisor were her Facebook “friends” and brought this to the company’s attention.
Human Resources investigated, and met with the employee to discuss her leave. They discussed the employee’s job requirements and the injuries she said prevented her from fulfilling those requirements. They explained how seriously the company took fraud, and then spent the bulk of the meeting discussing the Facebook pictures and how they contradicted the employee’s statements. Because the employee failed to provide a reasonable explanation for the discrepancy between her claims of complete incapacity and the photos, HR representatives terminated the employee at the end of the meeting. The employee’s subsequent suit was dismissed due to the employer’s measured and thoughtful response.
Here are the key takeaways other employers suspecting FMLA fraud can take from this case. First, don’t overreact or allow emotion to cloud your decision making process. Second, involve legal counsel early, and together determine your strategy. Third, follow your standard procedures. Fourth, ensure your investigation is adequate and your conclusions are reasonable. Fifth, document, document, document. And sixth, although not evaluated by the court, be careful with social media, including how and when you use it.