Facebook Pictures of Employee Socializing at Local Festival Drown Her FMLA Claims

Posted by Jeff Nowak on November 14, 2012

beer_of_the_month.jpgEmployers and fellow FMLA nerds, consider this an early holiday present: Courts are increasingly dismissing FMLA claims when they find that the employer has an honest belief that the employee has engaged in FMLA fraud.  

This is a longer than usual post, but hang with me, as I share some best practices below.  

Take the situation of Sara Jaszczyszyn.  (We'll call her Sara, for short.)  Sara worked for Advantage Health Physician Network as a customer service representative where she spent most of her day talking with customers by telephone.  As the result of a car accident several years earlier, Sara experienced back pain, which began to worsen shortly after her employment started. 

Sara first missed work for the condition on August 31, and she returned to work with medical certification supporting the need for intermittent FMLA leave. The certification indicated that Sara likely would have four "flare ups" per month and that each flare up could last anywhere from a few hours to a few days. When they occurred, Sara could not perform all of her job functions.

After obtaining this certification, Sara took it as carte blanche to remain absent for a continuous, open-ended period of time.  After early September, Sara remained absent.  

While Sara was on FMLA leave, she attended "Pulaski Days," a Polish heritage festival, where she spent eight hours socializing with friends.  After the festival, Sara posted on Facebook several pictures in which she is shown *enjoying* the festival.  Sara's co-workers weren't amused, since they "were covering for her" (whatever that means).  Apparently feeling betrayed because Sara was partying and they weren't, several of Sara's co-workers complained to their boss, who then viewed the Facebook pictures.  

We know how this story ends, right?  Indeed!  Days later, Sara's employment was terminated.

Sara's FMLA Claims are Dismissed because the Employer Flawlessly Handled the Situation

After her termination, Sara filed FMLA interference and retaliation claims against Advantage. However, these claims were quickly dismissed.  

Why?  Because the employer responded precisely in the manner it should.  

After learning of the Facebook pics, the employer did not rush to judgment and terminate Sara on the spot.  Rather, it conducted a complete and exhaustive investigation of the facts at issue. Specifically, Advantage invited Sara back to work to discuss her leave of absence.  During the meeting, they: 1) confirmed her requests for a leave of absence through the present time; 2) confirmed with her the extent of her injuries that she believed prevented her from performing her job; 3) obtained her confirmation that she understood how seriously Advantage took fraud; 4) presented her with the Facebook pictures and explained why they thought these pictures were inconsistent with her statements supporting the need for leave and her certification, which stated that she was "completed incapacitated."  

Moreover, the employer wisely asked Sara to explain the apparent discrepancy between her "complete incapacitation" and the Facebook photos.  Sara's response?  She "was in pain at the festival and was just not showing it."  After that excuse failed miserably, her next response was telling.  You guessed it: silence.

Insights for Employers

What must an employer establish when it terminates an employee for FMLA abuse?  That it had an honest belief the employee was engaging in fraud. In other words, it must show that it reasonably relied on the particular facts at issue, even if the employer is later proven to be mistaken in its belief.  An employer effectively advances this defense only when it conducts a complete and exhaustive investigation into the alleged facts.  

Here, Advantage's investigation served as Defense Exhibit A in dismissing Sara's FMLA claims because it was able to show that it conducted a complete and exhaustive investigation into the facts at issue. Look above at Advantage's investigation: it confirmed the scope of Sara's need for FMLA leave; it asked Sara explain in her own words what her limitations were; it had her acknowledge the importance of combating fraud in the workplace; and then, after obtaining these admissions, it lowered the boom by introducing the Facebook pictures. At that point, did Advantage really even need to inquire further? Sara's underwhelming response when faced with the pictures was evidence enough. See the court's opinion in Jaszczyszyn v. Advantage Health Physician Network (pdf) here.

I regularly remind my clients: even when you have have caught an employee red-handed in fraud or inappropriate conduct, there is absolutely no substitute for a complete and exhaustive investigation into the facts.  Why?  Courts and juries insist on it.  It simply is human nature to assume that all employees will be afforded some level of due process -- i.e., the chance to respond to the allegations and defend themselves -- before a termination decision is made. When employers don't afford an employee this opportunity, the risk of litigation and an adverse ruling increases significantly.  Follow Advantage's lead, and set yourself up for a strong defense.

Still interested in how an employer can effectively advance an "honest belief" defense?  We'll cover this topic head on during our December 6 webinar, which you can register for here.

By now, you're really interested in seeing Sara's Facebook pics, aren't you?  Eric Meyer of the Employer Handbook has them here.

Employee's FMLA Leave Requires an Employer to Adjust Performance Standards

Posted by Jeff Nowak on August 29, 2012

used_cars_1980_685x385.jpgWhen an employee takes FMLA leave, is an employer obligated to adjust its performance standards so as to avoid penalizing the employee?  According to a recent federal court decision, the answer is Yes.  And failing to do so sets the employer up for an FMLA interference claim.

The Facts

Take this situation: Jeff was a salesperson for a company that manufactured corrugated packaging products.  Pagel began experiencing chest pain and labored breathing, causing him to undergo a battery of tests.  Tests revealed a blockage in a portion of his heart, and he was later admitted to the hospital to treat the blockage.  Five days before his scheduled heart procedure, Jeff met with his bosses to discuss his year-to-date performance.  The bosses weren't happy: they had observed a noticeable decline in Jeff's sales revenue and volume over the past two years and his year-to-date numbers were even worse.

Jeff didn't agree with his bosses' assessment, claiming in large part that the employer didn’t adjust his sales expectations for the time he took FMLA leave.  The meeting ended with a stern warning to Jeff: improve your performance or face termination.

Several weeks later, while Jeff was in an Iowa medical clinic for follow-up tests, his boss contacted him and informed him he would be traveling to Jeff's sales territory the following day to tag along on some sales calls.  There was one critical issue -- sales calls typically were scheduled one week in advance to give the client enough notice and the employee enough time to prepare.  Jeff had no time to set up a full day of calls or to prepare for them.  Ultimately, Jeff and the boss made two client visits the following day.  By all accounts, Jeff did not perform well.

As these stories tend to go, Jeff was terminated shortly thereafter for continued poor performance, including the awful sales calls with his boss.

The Ruling

Jeff filed an FMLA interference and retaliation claim, and the Court refused to dismiss it.  Pagel v. TIN, Inc. (pdf).  Interestingly, the Court noted:

The FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.

Particularly troublesome to the court was evidence that: 1) the company terminated Jeff for not meeting sales expectations, even though he was absent a number of days for FMLA-protected treatment; 2) his boss relied on inaccurate data in finding that he not meet some of the company's reporting requirements; and 3) the boss insisted on making client sales calls even though the standard approach required one-week advance notice to the client, which could indicate that the boss was setting Jeff up to fail.

Insights for Employers

Surely, I can be accused at times of drinking the employer cool-aid, but I wonder whether the actual facts here lie somewhere in the middle.  Put aside the few weeks of FMLA leave that Jeff took, his sales numbers declined for two years!  Had the employer took action just a few months earlier, it arguably would not have faced any liability at all, since no employer has to live with an employee who misses the mark for such a prolonged period of time.

However, the timing of these events, the failure to account for FMLA leave in its performance standards, and the insistence of a sales ride along on short notice was enough to sink the employer.  A few words of caution in these situations:

  1. Eric Meyer puts it well: the employer failed to hire slow and fire fast.  In other words, the employer should have acted long before Jeff's heart blockage to identify performance issues and communicate them to the employee.  By pushing off the conversation about continued performance problems, employers shoot themselves in the foot.
  2. Employers should adjust performance standards during an employee's FMLA leave.  Why?  Because courts say so! 
  3. Don't set yourself up for a retaliation claim.  The employer here may very well have been frustrated with Jeff's prolonged deficient performance, but creating a separate set of performance expectations for an employee taking FMLA leave is a recipe for disaster.  For example, if the standard is to set up sales calls one week in advance to give the client and employee time to prepare, give the employee time to do so.  Setting an unlevel playing field for the employee in this situation significantly increases the risk of a retaliation claim.

Mishandling FMLA Leave for Alcohol Treatment Causes Employer to Fall Off the Wagon

Posted by Jeff Nowak on February 21, 2011

An employee enrolled in an addiction treatment program need not be under a doctor's care or actually staying at a rehab institution to qualify for FMLA leave, according to a federal court in Texas.  Picarazzi v. John Crane, Inc. (pdf)

The Facts

Plaintiff Perry Picarazzi, a customer service representative for John Crane, Inc.(JCI), had a history of alcoholism, and his alcohol problems clearly led to absenteeism problems in March 2008.  As a result, he was issued a number of "points" under JCI's attendance policies, which led to progressive discipline.  However, JCI failed to issue this course of discipline until the day it also issued a final warning to Picarazzi, which occurred mere days before his termination in late June 2008.

Continue Reading

Employer Properly Demoted Employee Upon Return from FMLA Leave

Posted by Jeff Nowak on May 26, 2010

All too often, employers are criticized for blunders they could have avoided when taking disciplinary action against an employee with a medical condition.  However, a recent federal appellate court decision provides a glowing example of how an employer got it right when it disciplined an employee upon her return from leave under the Family and Medical Leave Act. 

Last month, the 11th Circuit Court of Appeals found that a drug company did not violate the FMLA when it demoted a top-level executive upon her return from maternity leave for performance deficiencies unrelated to her FMLA leave.  Schaaf v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline (pdf).

Continue Reading