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Facebook Photos Show FMLA Abuse, Does Court Dismiss Case?

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If an employee is supposed to be on leave under the Family and Medical Leave Act (FMLA) because a medical condition prevents him for handling the day-to-day tasks of his job, one might think a couple of photos of him frolicking on a Caribbean island during the leave would be enough to prove he was abusing his FMLA leave. And it probably could have been.

The case is Jones v. Gulf Coast Health Care of Delaware LLC (d.b.a., Accentia Health) (case) and on the surface, the company appeared to do everything it should have in this situation. But a second look shows some costly mistakes were made.

Background

Rodney Jones was the activity director at Accentia Health. His job was to decorate the building for holidays and events, maintain calendars, charts and care plans, and oversee outings, parties and recreation for patients.

During his tenure, Jones required shoulder surgery for which he requested FMLA leave. His request was granted, and he took his full allotment of 12 weeks of leave. But he still needed more time to recover, and Accentia Health granted him an additional month off (although it classified it as "non-FMLA" leave). During that month, Jones took two trips to Busch Gardens, as well as a trip to St. Martin.

While at Busch Gardens he took photos of decorations he woud like to incorporate at Accentia Health, which he posted to his Facebook page and forwarded on to co-workers. Then, he traveled to St. Martin, where he took and posted the photos of him swimming.

Accentia Health caught wind of those photos, and you know what it was thinking: He clearly was not using his leave to recuperate from surgery.

When Jones' returned from his additional leave — with a completed fitness for duty certification his supervisor asked for when Jones initially asked to be placed on light-duty — his supervisor showed him the incriminating photos, said the company believed Jones had been well enough to work while he was on leave and suspended him. A few days later Jones was fired.

This prompted him to file an FMLA retaliation claim.

Inconsistencies and contradictions

Initially, a court ruled in favor of the employer and dismissed the case. But on appeal, the Eleventh Circuit Court of Appeals said Jones had shown enough facts to support his FMLA retaliation case.

A major factor: Accentia's reasons for terminating Jones were inconsistent. According to the court, the inconsistencies included:

The formal termination letter. The formal letter said "As you [Jones] have declined to provide any additional information, the decision has been made to terminate your employment effective immediately based on the information available." But Jones claims he was never even asked to provide additional information. Rather, he was simply told that he was being suspended, and then fired for abusing and misusing FMLA leave by engaging in activities — the infamous Facebook photos — that demonstrated his ability to return to work earlier than he did.

A lack of explanation about the reason behind the termination. Accentia claimed a violation of its social media policy was one of the reasons Jones was fired. The company had a social media policy that stated: "I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of Gulf Coast Health Care or violates the HIPPA privacy law may result in disciplinary action up to and including termination."

Problem was, when the company fired Jones, they never let him know he violated its social media policy or that his posts on Facebook showed "poor managerial judgment." On the other hand, Jones' direct supervisor cited a host of other reasons — Jones unnecessarily prolonged his recovery and went on vacation when he should have been at home recovering, Jones did not receive his agreed upon physical therapy (proved wrong by a letter from Jones' therapist) — that influenced his decision to fire Jones.

The social media policy in question also was an issue for the court. The policy says the company can fire employees if their social media posts "have an adverse effect on co-workers." The Facebook posts about Jones were brought to Accentia's attention anonymously by a co-worker, and Jones' supervisor said he heard gossip about the photos and felt they "create[d] a morale issue among employees."

That is fine, but, as the court pointed out, it should have both looked further into the complaints and brought these allegations and policy effects to Jones' attention and allowed him to respond.

But Jones was not informed during his suspension meeting or in his termination letter that he had violated Accentia's social-media policy. In addition, Daniels [Jones' supervisor] conducted no further investigation regarding the anonymous complaint, and neither he nor any other Accentia official could identify any employee who was adversely affected by Jones's Facebook posts. Finally, there is evidence that the purpose of Accentia's social-media policy, as discussed during managerial training, is to prevent employees from posting harmful or negative comments about the company's staff or facilities. Jones's Facebook posts were clearly far afield from this area of concern.

In sum, the record indicates a number of inconsistencies and contradictions with respect to Accentia's proffered reasons for terminating Jones.

What the company could have done

Two key lessons from this ruling:

  1. Be consistent. If you are going to take adverse action against an employee when FMLA is in play, it is critical that your actions are consistent and clearly explained to the employee being disciplined.
  2. Communicate, communicate, communicate. As The Employer Handbook's Eric B. Meyer points out, better communication could have "saved the plaintiff's job and mooted a lawsuit altogether." And if the increased communication did cement the company's reason for termination, it also probably would have prevented a lawsuit from going to trial.

Posted In: Quit, Resigned, Termination of Employment, etc.; Social Media; Workplace Policies/Rules; Family and Medical Leave Act (FMLA)

Want to know more? Read the full article by Jared Bilski at HR Morning

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