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Feb 23, 2016

By Eric B. Meyer

If you take leave under the Family and Medical Leave Act, go on vacation, and then post your pictures on Facebook, the odds are that your employer is going to find out about it.

Why? Because your co-workers, the ones you friended on Facebook, but who really aren’t your friends, are going to snitch on you faster the Road Runner on Wile E’s Acme Rocket Skates.

And, if a company learns that an employee on FMLA is really on vacation. Well, that tends to negatively affect both his future employment prospects and the likelihood of a successful FMLA lawsuit.

Social media catches another employee

Kinda like the plaintiff in this case (Jones v. Gulf Coast Health Care of Delaware), who posted pictures on Facebook of a trip to Busch Gardens while on FMLA leave. Then, after he failed to furnish a timely fitness-for-duty certification, but received some extra non-FMLA leave to complete physical therapy, he doubled down by posting pictures on Facebook of a trip to St. Martin.

So, when the company learned about the photos and fired the employee, he claimed FMLA retaliation. And the court was like…

Plaintiff does not show that he was fired for exercising his right to take FMLA leave. Plaintiff’s actions while on FMLA leave and on non-FMLA led to his termination. There is no evidence that Plaintiff was retaliated against for requesting and taking FMLA leave. An employer “may terminate an employee for a good or bad reason without violating federal law. [Courts] are not in the business olegdjudging whether employment decisions are prudent or fair.”

Give them chance to explain

In other words, if employer fires an employee based on its good-faith, honest belief that an employee is abusing FMLA leave, that does not violate the FMLA. But before you go that route, don’t deprive yourself of the guilty pleasure of confronting the employee with the Facebook evidence.

Seriously though, it does make sense to give the employee a chance to explain. A bad explanation or no explanation at all — as was the case in the above example — further supports the termination decision.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.