Facebook Photos Defeat FMLA Interference and Retaliation Claims. Sara Jaszczyszyn worked for Advantage Health Physician Network as a part-time clerical employee. During the employment process, she disclosed that she had a prior back injury related to a car accident which required two surgeries. She stated she had not had any recent back problems, and passed a pre-employment physical. She was promoted to a full time position in the HR department, and then was transferred to a customer service representative position. After 9 months, her back pain got worse, and her doctor took her off work for an 8 day period ending September 7. Advantage recommended that she fill out FMLA paperwork, and placed her on intermittent FMLA leave. On September 22, her doctor submitted another Certification, indicating she would not be able to work from September 10 to October 5, and later continued the time off through October 26. On October 3, while she was "totally incapacitated" per her doctor's certification, Ms. Jaszczyszyn spent 8 hours at a local Polish Festival, consuming adult beverages. Of course, she posted pictures of herself at the festival, and left her supervisor several voice mail messages stating that she would not be be able to be at work on October 5 due to her pain. A co-worker notified her supervisor of Jaszczyszyn's adventures, and the incident was reported up the chain of command, including a consultation with Advantage's counsel. After conducting an investigation, including interviewing Zsazsa's, Advantage terminated her employment based on fraud. She sued alleging FMLA interference and FMLA retaliation. The 6th Circuit held that in order to prove a retaliation claim, plaintiff must prove intent to discriminate, and she failed to do so. The Court further found that intent is not a necessary element of the interference claim, and Advantage's "Honest Belief" in the justification of it's decision would defeat an interference claim.
Practice Pointer. As usual, the facts of this specific case determined the outcome. Of critical importance was the fact that the employer conducted an investigation after it learned of plaintiff's conduct as found on her Facebook page. This gave plaintiff an opportunity to explain what happened, which she could not do. As such, Advantage had the legal right to terminate her. Without an investigation, the result may have been different.
Cumberland School of Law's 19th Annual Employment Law Update. I am fortunate to be able to present at this seminar, to take place this Friday, November 16. I will be on a panel with Magistrate Judge John Ott and plaintiff attorney Heather Leonard on the topic of"Sex, Drugs & Rock-n-Roll: The Impact of Social Media in an Employment Case from Start to Finish". Other topics include Alabama's revised immigration law, employment issues in state court, "Hot Topics" (FLSA, Title VII, NLRB) and Ethical Dilemmas for Litigators during Discovery and Trial. It is not too late to register: you can visit Cumberland's CLE page for more information and to register.