FMLA Fraud Established Via Employee Facebook Post

If you are “friends” with your co-workers on Facebook, a recent case from the Sixth Circuit Court of Appeals is a reminder to be careful about what you post. In Jaszzzczyszyn v. Advantage Health, the plaintiff employee was suffering from back pain as a result of a prior accident. Although the employee’s doctor certified her for intermittent leave, she treated it as continuous and stopped coming to work. Subsequently, the employee’s doctor provided a work release form in which he stated that she was “completely incapacitated” and could not work.

While the employee was “completely incapacitated” and unable to work, she attended a Polish heritage festival and then posted photos on Facebook of herself drinking and carousing. Her co-worker Facebook “friends” saw the photos and brought them to the attention of management. Management then fired the employee, after giving her a chance to explain and reconcile the photos with her alleged medical condition – which she could not do. The employee sued claiming that the employer retaliated against her for taking leave. On appeal, the Sixth Circuit held that terminating the plaintiff for FMLA fraud was non-retaliatory basis for her termination.

This case is an example of how the use of social media can impact employment relationships – here to the employee’s detriment. It is also a reminder to employers that social media may play an important part in investigations of employee fraud or suspected misuse of leave.

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