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Denise Dadika[/caption]
Everyone has “friends” who overshare their daily activities on Facebook. Rodney Jones’ oversharing cost him his job. Jones worked as an activity director for Accentia Health, a long–term care nursing facility. Accentia Health granted Jones 12 weeks of FMLA and an additional 30 days of non-FMLA leave in connection with his shoulder surgery. Prior to the end of Jones’ leave, Accentia Health learned that Jones was posting about his leave activities on Facebook, including his visits to Busch Gardens Amusement Park and his Caribbean vacation, where he spent time swimming in the ocean despite his shoulder injury. It seems that Jones’ colleagues did not appreciate seeing photos of Jones’ fun times while they were busy working and reported his posts to management.
When Jones returned to work, Accentia Health confronted Jones with his Facebook posts and permitted him to provide information about his leave and activities during leave, but Jones declined to do so. Accentia Health discharged Jones “due to the poor judgment [he] exhibited as a supervisor and the negative impact that his Facebook posts and text messages had among the associates at Accentia Health.” In addition, Accentia Health concluded that Jones’ conduct violated the Company’s Social Media Policy, which provides that “Social Media usage that adversely affects job performance of fellow associates … may result in disciplinary action up to and including termination.”
Jones sued Accentia Health alleging it interfered with his FMLA rights by requiring him to present a fitness for duty certification upon his return and discharged him in retaliation for taking leave under the FMLA. The Court dismissed Jones’ claims on summary judgment finding that (1) Accentia Health did not interfere with Jones’ FMLA rights when it enforced its uniformly-applied policy requiring Jones to present a fitness for duty certification, and (2) Jones was not discharged because he took leave, but because of his actions while on leave, opining an employer “may terminate an employee for a good or bad reason without violating federal law. [Courts] are not in the business of adjudging whether employment decisions are prudent or fair.”
The case serves as a reminder that employers may take action against employees who violate company policies while on leave and/or are suspected of FMLA abuse. Before taking any action, however, employers should take the time to investigate the suspected violation and/or abuse, including questioning the employee about the need for leave and inability to work before confronting the employee with the misconduct. Employers should also consider creating policies that protect against employee abuse while on leave, including policies that require employees to remain within the close vicinity of their homes while on medical leave and/or social media policies, similar to Accentia Health’s, that provide for discipline of employees whose social media posts adversely affect the job performance of fellow employees. Finally, employers may require employees returning from leave to present a fitness for duty certification but should uniformly enforce the requirement to protect against FMLA interference claims.
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