As we have previously mentioned, an employer's use of social media content has its risks and legal limitations. However, under certain circumstances, an employee's social media activity may prove relevant to and warrant disciplinary action. A recent FMLA decision illustrates how.
A federal court in Michigan recently decided an FMLA case in the employer's favor after the employee's Facebook posts revealed her misuse of FMLA leave and dishonesty. In the decision, captioned Lineberry v. Detroit Medical Center, the employee, an RN with the hospital, was approved for FMLA leave after allegedly injuring her lower back and leg. While on FMLA leave, she took a prepaid, planned vacation to Mexico. Though she had substantial lifting and mobility restrictions, her doctor approved the vacation, opining that it was not as physically demanding as her job and therefore did not conflict with her recovery.
During her leave, the employee posted pictures of her vacation on Facebook, showing, among other things, her riding in a motorboat and lying on her side on a bed holding up two bottles of beer in one hand. She also posted photos showing her holding her grandchildren (one in each arm) and details regarding activities such as trips to Home Depot After co-workers, who were Facebook friends with the employee and knew of her supposed physical limitations, saw the pictures, they complained to management about what they considered a misuse of FMLA leave.
While the employee was still on leave, a supervisor responded to an email complaint by the employee that she had not received a get well card from staff. The supervisor responded that "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." In her response, the employee repeatedly claimed that she traveled using a wheelchair so that she did not have to stand for any lengthy period of time. However, after the employee was advised that airports have cameras and was shown her Facebook postings, she admitted to lying about using a wheelchair and conceded that she was able to stand for more than 30 minutes while going through customs.
The hospital terminated her employment for misuse of FMLA leave and dishonesty. She then filed a lawsuit claiming violation of her FMLA rights because she was not reinstated and terminated. The Court dismissed her claims, finding that the hospital had the right to terminate her employment because of her admitted dishonesty and misuse of FMLA. The Court emphasized that the FMLA does not afford an employee greater rights than she would otherwise have if she was not on FMLA leave. In other words, an employee's FMLA rights are not violated if the employer has a legitimate reason for terminating the employee's employment, unrelated to the exercise of FMLA rights.
The Lineberry case reminds us that while employers must be cognizant of the limitations on the use of employee social media content, such as possible claims of invasion of privacy or retaliation for protected activity, social media information, when properly obtained, can serve as a useful tool in demonstrating employee misconduct. However, because of the quickly evolving nature of use of social media content by employers, we strongly recommend that any employer considering using social media in connection with suspected employee misconduct seek counsel before doing so.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
