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Employee’s Facebook “friends” aid employer in FMLA termination decision


By Lee Williams

Have you ever suspected an employee of abusing approved time off office under the Family and Medical Leave Act (“FMLA”)?  A decision by a federal court in Michigan has provided employers with greater latitude in the sources of information they may consult in efforts to curtail FMLA abuse.  The ruling also reinforced the “honest belief” doctrine employers may use as a defense to FMLA claims.

A complaint was brought by a registered nurse against her employer, a Michigan-based medical center.  The nurse had worked for the medical center for approximately two years before her injury took place.  She had worked 12-hour shifts, walked, moved stretchers, and administered medications to patients.  In early 2011, the nurse was moving stretchers.  She awoke the next morning with intense pain in her lower back and legs.  She consulted a physician who advised the nurse not return to work.  The medical center subsequently approved the nurse’s request for 12 weeks of FMLA leave.

During her FMLA leave, the nurse traveled to Mexico with family members on a vacation she had scheduled and paid for before her injury.  Throughout her vacation, the nurse posted pictures and status updates on Facebook.  The postings showed the nurse on a motorboat ride, lying on her side on a bed and holding up two bottles of beer, and holding two infant grandchildren – one in each arm – weighing approximately fifteen pounds.  The postings also recounted trips to Home Depot, time spent “watching” the grandchildren, and taking online classes.

Oh what a tangled web we weave
The nurse’s co-workers, who were also her “friends” on Facebook, saw the postings and brought them to the attention of the nurse’s supervisor.  When the nurse returned from vacation, she emailed her supervisor to ask why the medical center staff had not sent her a “get well” card.  The supervisor mentioned the Facebook postings and stated the nurse would be expected to return to work soon.  The nurse lied to her supervisor, claiming she had used a wheelchair during her trip and had not been able to stand for more than 10-15 minutes at a time.  The supervisor then brought the issue to the medical center’s loss prevention department.  She asked them to conduct an investigation based on her belief the nurse had misused her FMLA leave.

Plaintiff was cleared to return to full work responsibilities in mid-April 2011.  Shortly after her return to work, the nurse was required to attend an investigatiory meeting with the medical center’s loss management department.  The nurse maintained the lies she had already told her supervisor about her trip to Mexico.  

The loss management team then presented the nurse with the Facebook postings she had made during her trip.  After being confronted with the postings, the nurse came clean and admitted she had lied to her supervisor and had continued her ruse to remain consistent in her story.  The nurse was terminated by the medical center shortly thereafter.  The termination letter sent to the nurse cited violation of the medical center’s policy against dishonesty.

Dishonesty and the “honest belief” doctrine
The nurse sued her former employer alleging she had been terminated in retaliation for exercising her rights under the FMLA.  While the FMLA prohibits employers from retaliating against employees for taking FMLA leave, employees are provided no greater rights than if they had been continuously employed during their FMLA leave.  Employees have no right to lie to their employer or to violate other employer policies merely because they are taking or have taken
FMLA leave.    

The court ruled the medical center lawfully terminated the nurse for violation of its policy against dishonesty.  The nurse claimed the medical center’s reliance on its policy against dishonesty was a pretext for retaliation.  The court disagreed, finding the medical center had maintained a lawful policy against dishonesty and the nurse had violated that policy by.
The court also found the medical center had an “honest belief” the nurse had engaged in misconduct.  The “honest belief” defense to FMLA claims allows employers to discipline an employee when they honestly believe, based on particularized facts, an employee has lied and misused FMLA leave. 

The court found he nurse’s blatant lying, and the Facebook evidence of her actual activities provided the employer with an honest belief she had been dishonest.

Proper use of FMLA Leave
Employers who suspect an employee of violating the terms of approved FMLA leave are not without recourse.  They are permitted to investigate the matter and, may gather evidence from a multitude of sources, including social media outlets.  If it becomes necessary to terminate the employee based on violation of company policy for misuse of FMLA, the violation should be carefully explained.

Read the case here.


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