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FMLA + Facebook + Fraud = Fired

by on
in Case In Point

We’ve been warned not to discipline employees for their Facebook rants about the company. (That could be “concerted activity.”) And we have to be careful not to use Facebook info when hiring. (That could be discrimination.)

So can employers really use Facebook for anything these days? Yes, you can, says an important court ruling this month. If an employee is on FMLA leave, on vacation, on a beach, on a buzz … then Facebook may be your best friend.

Case In Point: During Carol's 12-hour shifts at a Michigan medical center, the registered nurse was constantly walking, moving equipment and distributing medicine. After moving stretchers at work one day, Carol said she experienced “excruciating” lower back and leg pain. Her doctor ordered her to refrain from working. She was approved for job-protected leave under the Family and Medical Leave Act (FMLA).

The problem: She was scheduled to go on a prepaid vacation to Mexico the same month her FMLA started.

What’s an employee to do? With doctor’s approval, Carol hopped on the plane and landed on the beaches of Mexico. She was having such a lovely time that she posted her vacation photos on Facebook. There she was having fun in a motorboat …  lying on a bed holding beer bottles … making trips to the Home Depot … and even holding her two 15-pound infant grandchildren in her arms.

What’s wrong with this big picture?! 

Ironically, while on leave, Carol sent her supervisor an email saying how hurt she felt that her co-workers hadn’t given her a get-well card!

Instead of a get-well card, Carol’s supervisor replied with his own email, saying, “The staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work.”

Yikes! She replied via email, saying that moving around Mexico actually wasn’t easy. She said she had to use a wheelchair at airports and could not stand for more than 10 minutes. 

After returning from Mexico, Carol was brought into an investigative meeting, where she admitted that she didn’t use wheelchairs in the airports. The medical center fired her, citing “dishonesty” as the reason.

She sued, alleging interference with her FMLA rights to reinstatement. The employer pushed back, saying her own Facebook photos proved fraud.

Verdict: The court agreed with the employer and tossed the case out of court, noting that the Facebook posts and her admissions about lying gave the employer enough information to make an “honest belief” about FMLA misuse. (Lineberry v. Richards, E.D. Mich., 2/5/13)

3 Lessons Learned … Without Going To Court

  1. Facebook photos are admissions. The court noted the employee supplied her own evidence of fraud when she posted her fun-in-the-sun pictures for the world to see. Note to self: Take a screen shot of the vacation pictures quickly before the employee figures it out and takes them down!
  2. Dishonesty is a good enough reason to fire. Just make sure you have a policy about dishonesty being a reason for termination. It seems so obvious, but it is often overlooked.
  3. If it doesn’t make sense, it’s not true. Even the court had a difficult time understanding how a nurse who could not stand long at work in Michigan could suddenly stand in Mexico. In this case, “location, location, location” was not a valid legal defense against FMLA misuse.

 

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{ 1 comment… read it below or add one }

Penny Fassett March 1, 2013 at 10:09 am

I have been fortunate to attend presentations that Mindy has given at the national SHRM conference. Mindy is able to relate the various employment law nuances in an effective and attention grabbing format. I was on Mindy’s Email list for the Case in Point updates at my previous place of employment. Have transferred to a new company/position and would like to get back on the Email list for this publication. Thank you.

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