Using Social Media Evidence in Termination Process

Employers are struggling to understand legislation, judicial decisions and agency rulings which limit and regulate access to employee social media activities. California, Illinois and Maryland, recently restricted the employer’s ability to request the username or password to employee and applicant social media accounts. Fourteen other states introduced similar legislation in 2012. While employees’ use of social media continues to challenge employers, recent decisions have supported the employers’ reliance on Facebook pictures to discharge employees for violation of company policy.

In one recent case, the Sixth Circuit Court of Appeals ruled that a company neither retaliated against an employee who had taken intermittent leave nor interfered with her rights under the Family Medical Leave Act when firing the employee for fraud following an investigation that included an examination of Facebook pictures posted by the plaintiff. Jaszczyszyn v. Advantage Health Physician Network, 2012 U.S. App. LEXIS 23162 (6th Cir. Nov. 7, 2012) (unpublished). The Jaszczyzyn case may be instructive to employers. The decision considers in the FMLA context the impact of social media evidence on the employer’s decision to terminate an employee while analyzing the differences between interference and retaliation claims. It also addresses the application of the “honest belief rule” to both types of FMLA claims. form to the company, indicating the plaintiff was having four “flare ups” per month and would be unable to perform all of her job duties when the flare ups occurred. Her employer approved the request for intermittent FMLA leave. The plaintiff, thereafter, began treating the leave as continuous rather than intermittent. She had to be reminded repeatedly to contact her supervisor if she was unable to come to work and to turn in the required paperwork.

Background

After she was cleared to work without restrictions following a health examination, the plaintiff, Sara Jaszczyszyn, began working for Advantage Health Physician Network in January, 2008 as a part-time clerical employee. She had reported a prior back injury related to a car accident years earlier, which required two surgeries, but stated she had not experienced recent back problems. She later was promoted to a full-time position in the Human Resources Department, and then was transferred to work as a customer service representative.

Nine months after the transfer, the plaintiff complained to her treating physician of worsening back pain. Her doctor submitted a work release form to the company, stating the plaintiff was “completely incapacitated” for an eight-day period (August 31 to September 7, 2009). The company advised the plaintiff to apply for FMLA leave and provided her the necessary paperwork, including the rules governing leave.

The plaintiff returned to work on September 8. The following day, her physician submitted an incomplete Certification of Health Care Provider Employers are struggling to understand legislation, judicial decisions and agency rulings which limit and regulate access to employee social media activities. California, Illinois and Maryland, recently restricted the employer’s ability to request the username or password to employee and applicant social media accounts. Fourteen other states introduced  similar legislation in 2012. While employees’ use of social media continues to challenge employers, recent decisions have supported the employers’ reliance on Facebook pictures to discharge employees for violation of company policy.

After seeing the plaintiff on September 22, the plaintiff’s physician completed an additional Certification, projecting the plaintiff would be disabled from September 10 to october 5. The physician later completed and signed a work release form indicating the plaintiff was completely incapacitated for an additional three weeks (october 5 to october 26).

The FaceBook Pictures

On Saturday October 3, the plaintiff spent eight hours attending Pulaski Days, a local Polish heritage festival with friends. She later posted nine pictures on Facebook taken at the festival of her engaging in a variety of activities. Thereafter, the plaintiff stated in voicemail messages to her supervisor that she would not be at work on Monday (October 5) because she was in pain.

The supervisor and several of the plaintiff’s co-workers were plaintiff’s “friends” on Facebook. one co-worker pointed out the festival pictures on Facebook to the plaintiff’s supervisor. The plaintiff’s supervisor then notified her own supervisor, sharing some of the photos. After consulting with counsel, an investigation was conducted by the company that included an interview with the plaintiff. The majority of the interview focused on the Facebook pictures of the plaintiff at the festival which the employer considered inconsistent with the statements that she made in support of FMLA leave. She was unable to give a reasonable explanation for the discrepancy between her request for leave and her conduct at the festival. The decision was made to terminate plaintiff’s employment for fraud.

The plaintiff sued the employer, asserting two claims: FMLA interference and FMLA retaliation. The trial court granted the employer’s request for summary judgment, agreeing that there was no evidence that anyone at the company had a retaliatory motive and that the employer had an “honest suspicion” the plaintiff was abusing her leave. The plaintiff appealed.

FMLA Retailiation/Interference Standards

Under the FMLA, eligible employees are entitled to a total of 12 weeks of leave during any 12-month period for, among other things, the employee’s own “serious health condition that makes the employee unable to perform the functions” of his or her job. See 29 U.S.C. §2612(a)(1)(D). Furthermore, for violations of the FMLA, the law provides employees with two theories of recovery: interference and retaliation (based on 29 U.S.C. §2615(a)(1) and §2615(a)(2), respectively.

First, the appeals court determined that of the elements required to state a prima facie claim under both theories of recovery, only the last two prongs of each were at issue: for the interference claim, “[whether] the defendant denied [her] FMLA benefits or interfered with FMLA rights to which [s]he was entitled,” and for the retaliation claim, “[whether] there was a causal connection between the protected FMLA activity and the adverse employment action.”

The employer’s intent to discriminate is required proof under a claim of retaliation , but not under an interference theory. The Court also rejected a strict liability standard for interference cases, stating, “[I]nterference with an employee’s FMLA rights does not constitute a violation if the employer has a legitimate reason unrelated to the exercise of FMLA rights for engaging in the challenged conduct.” Edgar v. JAC Prods., Inc., 443 F. 3d 501, 507-08 (6th Cir. 2006).

Next, the appeals court determined that FMLA interference claims were properly analyzed under the McDonnell Douglas burden-shifting test, at least where, as in this case, the employer had proffered a “legitimate reason unrelated to the exercise of FMLA rights for terminating the employee.”

Application of “Honest Belief” Rule

The Court of Appeals next considered whether an employer’s “honest belief” in the justification for its action can defeat an FMLA interference claim. The Court stated, “[S]o long as the employer honestly believed in the proffered [lawful] reason given for its employment action, the employee cannot establish pretext even if the employer’s reason is ultimately found to be mistaken, foolish, trivial, or baseless.” Courts apply the “honest belief” rule in considering whether a plaintiff has met  her burden of establishing that the reason proffered by the employer for the adverse employment action is pretextual. The Court found it was unclear under Sixth Circuit precedent whether the “honest belief” rule applied to interference claims. However, the Court found it unnecessary to resolve the issue, since it concluded the plaintiff had received all of the leave she was entitled to receive at the time the investigation into her conduct began, and therefore, could not state a claim for Interference with FMLA rights. The Court found the employer had not ruled on the plaintiff’s second leave request when she was terminated.

The Court further noted the plaintiff’s interference claim related only to the employer’s failure to reinstate her at the end of her FMLA leave. The employer had approved the first leave request and paid her for the leave time. The Court found the plaintiff did not return to work at the end of her leave because, she claimed, she was too sick to return, not because of a denial of reinstatement.

Accordingly, the Sixth Circuit concluded the plaintiff had failed to state a claim for interference. The Court then applied the “honest belief” rule and rejected the plaintiff’s retaliation claim. It found the employer’s proffered reason for the termination decision was not pretextual. The employer had an “honest belief” that plaintiff had engaged in FMLA fraud, a non-retaliatory reason for discharge. The Court noted the employer’s investigation was adequate, turning in large part on the plaintiff’s behavior at the investigative interview.

The Court rejected the plaintiff’s assertion that the termination notice filled out by her supervisor (which stated absenteeism as the basis for termination) should be regarded as direct evidence. The Court stated the supervisor was not responsible for the termination decision and “absenteeism” was an accurate characterization of the plaintiff’s behavior.

Conclusion

As can be seen in the Jaszczyszy decision, Courts will uphold an employer’s decision to discharge an employee for fraudulent use of FMLA leave. The decision underscores the importance of employers having written rules of conduct and conducting a thorough investigation before making the decision to discharge an employee for misconduct.

The honest belief rule can be a powerful tool for employers to use to support termination decisions following an investigation over workplace misconduct. When the employer’s conduct is challenged, courts focus on whether the employer made a reasonably informed and considered decision before taking an adverse employment action. Here, the employer reviewed the

Facebook pictures posted by the plaintiff, her prior statements made in support of leave and interviewed plaintiff prior to making the decision to terminate her employment. Notably, the Facebook pictures were not surreptitiously obtained by the employer. Rather, the plaintiff had earlier “friended” her supervisor and co-workers which made her Facebook postings and pictures open for viewing. Deceptive or covert use of Facebook by the employer may have been treated differently by the court. Finally, as use of social media grows among employees, employers must continually review their social media policies in light of legislative developments, court and agency decisions.