Virginia Employment Law Blog
In an addition to our recent FMLA posts, I wanted to
highlight a recent article by the Employer Handbook that demonstrates how
employees on FMLA leave need to be careful about what they put on the internet.
In the case in question, an employee with the Advantage Health Physician
Network began taking intermittent FMLA leave for back pain. A few weeks into
her leave, her employer noticed pictures on her Facebook page that showed her
drinking at a local Polish beer festival. Advantage fired her for fraudulently
claiming a total disability, and she claimed FMLA retaliation.
The court upheld Advantage’s decision. Under the FMLA, an employer
can fire an FMLA abuser if it has an “honest belief” that he or she is abusing
the leave policy. What matters is not that the employer’s belief turns out to
be correct, but simply that the employer truly believed in the firing rationale
and that the reason was not motivated by the employee having taken FMLA leave
in the first place. The court noted that because the employee could not refute
Advantage’s honest belief that she was acting in a way inconsistent with her claim
of total disability, the dismissal was valid.
The post goes on to note that an “honest belief”
shouldn’t be used by employers as an excuse to avoid investigating potential
FMLA violations. In this case, Advantage was only successful because it
investigated and allowed the employee an opportunity to explain the discrepancy
between her FMLA claims and the Facebook images. She failed to offer any
explanation, and Advantage was able to move forward with her dismissal. Employees
need to remember that information put on Facebook is fair game, and that
Facebook pictures can affect the employment status of both employees on leave
and those who work under at-will arrangements.