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HR Focus: Facebook Friends Find FMLA Fraud

Volume 12, Issue 2
March 6, 2013

In a case involving FMLA fraud and an employer's right to consider Facebook postings, a court ruled that an employer lawfully terminated an employee for FMLA fraud when the employee called off due to FMLA (lower back pain) but spent that day at a beer festival and posted on her Facebook page 127 pictures of her good time that day.  See Jaszczyszyn v. Advantage Health Physician Network (6 th Cir., Nov. 7, 2012).  The employee provided certification from her physician that four to five times a month she could suffer flare-ups of her lower back, lasting up to a full day.  If she had such a flare-up, she would need to either sit down or change job responsibilities that did not require the use of her lower back.  Prior to her termination, she had attendance issues where the employer counseled the employee for failing to notify the employer each day the employee was unable to work because of the lower back issues.  Jaszczyszyn provided a statement from her physician that she would be unable to work from mid-September through late October.  However, on October 3rd, she attended Pulaski Days, which is an annual Polish Heritage Festival.  Apparently that day she visited three beer halls, had a good time for eight hours, and posted a number of pictures to her Facebook friends.  One of the friends, who happened to be a co-employee working that day, notified a supervisor.  The supervisor saw the pictures and an investigation began about Jaszczyszyn's absences and behavior that day. According to the court, "When asked to explain the discrepancy between her claim of complete incapacitation and her activity in the photos, she did not have a response and she was often silent, occasionally saying that she was in pain at the festival and just was not showing it."  The employer terminated Jaszczyszyn, who sued, claiming FMLA interference.  However, the court stated that Jaszczyszyn did not refute the employer's good faith belief that she fraudulently claimed an FMLA benefit on the day she attended the festival.  The employer had an "honest belief" that she fraudulently used FMLA to attend the festival. She failed to provide evidence to refute that honest belief and, therefore, her claim failed.  This HR Focus article was prepared by Lehr Middlebrooks & Vreeland, P.C., a member of the Worklaw® Network, which first appeared in their Employment Bulletin, Vol. 20, Issue 11 (Nov. 2012). Reprinted with permission.

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