In yet another development in social media and employment law, the 6th Circuit recently held in Jaszczyszyn v. Advantage Health Physician Network that an employer acted lawfully when it terminated an employee after Facebook photos showed her drinking at a festival at the same time she claimed to be incapacitated due to a medical condition. The takeaway from this case is the way the employer handled the incident. Indeed, even though it appeared that the employee was caught red-handed, the employer did not rush into judgment. Instead, it terminated the employee only after conducting a thorough investigation into the facts and giving the employee an opportunity to explain her conduct based on the employer’s “honest belief” that she had engaged in Family and Medical Leave Act (FMLA) fraud.
The plaintiff, in Jaszczyszyn, started missing work around Aug. 31, 2009 due to flare-ups from a prior back injury. The company granted her intermittent FMLA leave based on supporting medical documentation that declared the plaintiff “completely incapacitated” from Aug. 31 to Sept. 7, 2009. She submitted additional medical documentation, indicating that she would be incapacitated from Sept. 10 to Oct. 5, and from Oct. 5 to Oct. 26.
On Oct. 3, 2009, the plaintiff attended “Pulaski Days,” a local Polish heritage festival, where she spent more than eight hours socializing with friends. She also posted several pictures from her festival escapade on her Facebook page. That same weekend, she also told her supervisor on several voice messages that she was in pain and would not be able to work on the following Monday, Oct. 5. Together, those were not the wisest decisions.
The plaintiff’s FMLA leave was quickly questioned when her supervisor and several of her co-workers, with whom she was Facebook “friends”, saw the photos. The company launched a formal investigation and arranged a meeting with the plaintiff to discuss her leave. During that meeting, the company addressed her FMLA leave request and the effect her alleged injuries had upon her ability to work. Importantly, before addressing the incriminatory Facebook photos, the company confirmed with the plaintiff that she understood that it took fraud “very seriously.” When later asked about the Facebook photos, she was unable to reconcile her claim of complete incapacitation with her activity in the photos, other than that “she was in pain at the festival and was just not showing it.” She was terminated at the end of the meeting.
The court’s ruling
The 6th Circuit granted summary judgment for the company on the plaintiff’s FMLA interference and retaliation claims. The court found that the company did not interfere with her FMLA rights when it did not reinstate her at the end of her first period of leave, because the decision was based on the plaintiff’s stated inability to return to work due to her medical condition. In addition, the company had granted all the leave she was entitled to prior to the investigation into her conduct, and had paid for all her time off prior to her termination.
In siding with the company on the FMLA retaliation claim, the court noted that the company had an “honest belief” that the plaintiff had engaged in fraud. Under the “honest belief” standard, an employer must show that it had reasonably relied on the facts at issue in making the employment decision, even if the reason is later found to be mistaken, foolish or baseless, i.e. the employer’s reason is not a pretext. In addition, the court found “little or no evidence” that the plaintiff’s FMLA leave caused her termination, because the company properly investigated the facts and made the termination decision based on her responses at the termination interview. Similarly, the court did not find company’s preparation of a termination notice in advance of the parties’ meeting to be evidence of pretext, because it was the employer’s standard practice to prepare such notices in advance.
Based on the court’s focus on the “honest belief” defense when reviewing an employer’s decision, even when an employee is caught red-handed, employers must conduct a thorough investigation into the facts, in accordance with the company’s policies and practices, and give employees an opportunity to explain their acts before making an adverse employment decision. Employers should also be cautious when reviewing social media sites to determine if employees are engaging in employment-related misconduct. The National Labor Relations Board’s recent developments and guidance in the social media realm should prompt employers to consult with counsel when making employment decisions based on social media actions.