Monday, November 26, 2012

Another FMLA Case Blown by an Employee's Facebook Page

I am a bit late in posting this as I have been utterly swamped in work but I wanted to make a point to highlight a case that received a lot of attention recently.  The case involves an employee who worked as a customer service representative at Advantage Health Physician Network, and, as the job title suggests, the employee's primary duties involved sitting at a desk answering calls.  The employee, Sara Jaszczyszyn, first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four "flare ups" per month and that each flare up could last anywhere from a few hours to a few days.  When they occurred, Sara could not perform all of her job functions.  However, Sara began a pattern of what appeared to be FMLA abuse and what ultimately got her fired was her Facebook posts as viewed by coworkers, some of which covered for her while she was on FMLA leave.  

While Sara was on FMLA leave, she attended "Pulaski Days," a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara's co-workers weren't amused, since they "were covering for her" (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren't, several of Sara's co-workers complained to their boss, who then viewed the Facebook pictures.  Sara was then fired, but not immediately.  Sara then filed FMLA retaliation and interference claims, which were ultimately dismissed.  

From FMLA Insights write-up of the case: 
After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was "completed incapacitated."   
Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her "complete incapacitation" and the Facebook photos.  Sara's response?  She "was in pain at the festival and was just not showing it."  After that excuse failed miserably, her next response was telling.  You guessed it: silence.  

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