Be Careful When Posting About That Great Night Out On Facebook

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.

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Jordan Bergus
Attorney
Paulus Law Fim, LLC
(816)-581-4043

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012)

Read more:http://www.employerlawreport.com http://www.employerlawreport.com/2012/11/articles/leave-administration/anything-you-post-or-are-tagged-in-on-facebook-will-be-used-against-you-the-sixth-circuit-upholds-honest-belief-defense-to-employees-fmla-retaliation-claim-who-went-on-a-pub-crawl-while-on-leave-but-skirts-issue-as-applied-to-fmla-interference-claims/?goback=%2Egmp_2777146%2Egde_2777146_member_188400125#ixzz2DMJFARWX

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012)

Read more:http://www.employerlawreport.com http://www.employerlawreport.com/2012/11/articles/leave-administration/anything-you-post-or-are-tagged-in-on-facebook-will-be-used-against-you-the-sixth-circuit-upholds-honest-belief-defense-to-employees-fmla-retaliation-claim-who-went-on-a-pub-crawl-while-on-leave-but-skirts-issue-as-applied-to-fmla-interference-claims/?goback=%2Egmp_2777146%2Egde_2777146_member_188400125#ixzz2DMJFARWX

Jaszczyszyn v. Advantage Health Physician Network, (6th Cir. Nov 7, 2012)

Read more:http://www.employerlawreport.com http://www.employerlawreport.com/2012/11/articles/leave-administration/anything-you-post-or-are-tagged-in-on-facebook-will-be-used-against-you-the-sixth-circuit-upholds-honest-belief-defense-to-employees-fmla-retaliation-claim-who-went-on-a-pub-crawl-while-on-leave-but-skirts-issue-as-applied-to-fmla-interference-claims/?goback=%2Egmp_2777146%2Egde_2777146_member_188400125#ixzz2DMJFARWX

Second Circuit Strikes Down DOMA

Today, the Second Circuit Court of Appeals struck down the Federal Defense of Marriage Act as unconstitutional. In Windsor v United States, the New York based appellate court decided that DOMA violates the Constitution's Equal Protection Clause.

The Second Circuit joins the First Circuit in finding the law unconstitutional. That said, these decisions are likely only stepping stones to the Supreme Court, as the land's highest court will undoubtedly take up DOMA.

What does this mean in the Employment Law context? Federal law does not consider sexual orientation to be a protected class in the same way race, gender, and religion are---at least not yet.

A telling line from the opinion reads as follows: "Homosexuals are not in a position to adequately protect themselves from the discriminatory wishes of the majoritarian public." The Second Circuit seems to be putting this issue on a tee for the Supreme Court to knock out of the park by finding sexual orientation to be a protected class. If and when that happens, those discriminated against or harassed because of their sexual orientation should have the same rights in the workplace as everyone else.

Currently, seventeen states and the District of Columbia consider sexual orientation a protected class. Neither Missouri nor Kansas are included in that number. Ultimately, the decision the Supreme Court makes may very well expedite the process of ensuring that all are entitled to the same protections in Missouri and Kansas. We will just have to wait and see.

Have a question regarding your rights in the workplace or how this decision might affect you? Call the Paulus Law Firm at (816)581-4040 for a free consultation.

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Jordan Bergus
Attorney
Paulus Law Firm, LLC

Appeals Court Overturns Injunction Keeping Lee's Summit Twins in School

Yesterday the 8^th Circuit Court of Appeals overturned the Western District Court’s grant of a preliminary injunction that allowed Lee’s Summit twin brothers to stay in School. In the case titled S.J.W., et al. v. Lee’s Summit R-7 School Dist., et al., the brothers challenged their 180 day suspension for creating a bullying website. The twins argued that the suspension was a violation of their rights to free speech. The trial court agreed to halt the suspension until a trial could be had on the merits of the case. The 8^th Circuit overturned that decision stating that the district court’s findings did not support the relief granted and that the twins were unlikely to succeed on the merits under the relevant caselaw.

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Ryan M. Paulus

Attorney

Paulus Law Firm L.L.C.