Monday, November 26, 2012
Just three weeks ago, the 6th Circuit ruled that an employee's Facebook posts can be used to establish as evidence of an employer's honest belief that there was a fraudulent FMLA claim, even if the claim was real.
In Jaszczyszyn v. Advantage Health Physician Network, the Plaintiff/Petitioner had worked for the Defendant/Respondent for a year and a half and began taking intermittent FMLA leave due to a back injury sustained ten years earlier. Long story short, Jaszczyszyn attended a local festival, consumed a few adult beverages, and posted photos on Facebook from the event. Jaszczyszyn was friends with several coworkers on Facebook and these "friends" saw the photos and reported the incident to Jaszczyszyn's supervisor. Shortly thereafter, Jaszczyszyn was terminated and later filed suit for retaliation and FMLA interference.
Without getting down into the weeds of the Court's ruling, the Court ultimately found that the Defendant could form the "honest belief" that Jaszczyszyn was not disabled in the way she claimed and was fraudulently taking FMLA leave.
So why does this decision matter? Well, if you are smart about what and when you post, it does not matter at all. But if you are someone who loves to post pictures of drunken escapades on the town and wild dance parties, stop. If you are that person and plan on calling in sick every day after one of those nights out, seriously stop. Unless of course you do not want to keep your job.
While this decision is outside of the 8th Circuit, the reasoning is sound and there is no reason to believe it would not be adopted in-circuit. Take a lesson from Jaszczyszyn: be really careful who your "friends" are and do not think that you are so clever that you can trick your boss into time off, sick leave, or whatever else. Failure to heed this advice means you just might find yourself looking for a new job and probably some new "friends."
If you have any questions about wrongful termination, retaliation for taking FMLA leave, or anything related, please call Jordan Bergus at the Paulus Law Firm for a free consultation.
Paulus Law Fim, LLC