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Facebook Evidence of Employee’s “Fore” Play Sinks FMLA Claim

With the news that Tiger Woods will be returning to the Memorial Golf Tournament, which is just a few miles from our Columbus, Ohio office, we thought a golf-related post would be interesting. This post concerns the recent case of Sharrow v. S.C. Johnson & Son, Inc. Case No.: 17-cv-11138 (E.D. Mich. Apr. 12, 2018), which not only relates to golf, but it also involves social media evidence and the Family Medical Leave Act!

Our story goes back to the summer of 2015 when David Sharrow, who was an employee of S.C. Johnson & Son, Inc. was on workers’ compensation and FMLA leave for foot pain that he allegedly began experiencing during work.

During the weekend of July 17, 2015, which was during the FMLA period, Sharrow attended a charity golf tournament. Because we live in the age where “if it isn’t on social media it didn’t happen”, a picture of the employee at the event captioned “2015 Tim and Ed’s Golf Scramble Champs” found its way onto Facebook.

Not to be outdone, the next week, on July 25, 2018, Sharrow’s face showed up again in a Facebook post captioned “Tubing the Rifle River”. Not surprisingly, Sharrow’s supervisor found out about both posts. On July 29, 2015, the employee was cleared to return to work with no restrictions.

By September, the employee put in another request for FMLA leave, but that request was denied. A few days later the employer talked to Sharrow about the various activities he was somehow able and not able to do during his earlier time off. During that conversation, Sharrow admitted to partaking in the golf and tubing events as published on Facebook, though he tried to downplay his level of participation and physical activity.

Based on the interview the employer determined that Sharrow’s explanation of his physical limitations was inconsistent with his leave activities and recommended that Sharrow be put on Decision Making Leave (“DML”) for “Sick Benefit Fraud Violation.” During that time the employee was to consider whether he wanted to continue his employment and, if so, provide the employer with a commitment letter and action plan identifying how he would improve his behavior to adhere to the company attendance policies. The employee did, the action plan was approved by way of a Last Chance Agreement essentially, and he returned to work.

Sharrow’s return to work was short lived because on November 22, 2015 he was placed on administrative leave after he and another co-worker were photographed sleeping on the job. It did not help that Sharrow lied about it when asked only to be met with the photographic evidence. He was terminated for inattention to job duties, sleeping on the job, and for lying to the company regarding the sleeping incident.

Sharrow sued the employer for a number of reasons, including FMLA discrimination as the FMLA prohibits an employer from taking an adverse action against an employee for exercising rights under the FMLA. The employer filed a motion for summary judgment asking the Court to throw out the case before trial for lack of any factual or legal merit.

To establish a prima facie case of FMLA discrimination, an employee must show (1) the employee was engaged in an activity protected by the FMLA; (2) the employer knew the employee was exercising rights under the FMLA; (3) after learning of the employee’s exercise of FMLA rights, the employer took an employment action adverse to the employee; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action. Only the second and fourth elements were at issue.

The employee’s theory was an entitlement theory, as opposed to a retaliation theory, which prohibits an employer from interfering with an employee’s exercise of FMLA rights or wrongfully denying those rights, and the Court determined that the employee met all four required elements.

As such, the claim proceeded and the employer was faced with its burden to prove that it had a legitimate, non-discriminatory reason for putting the employee on the Last Chance Agreement. For its burden, the employer argued it placed the employee on leave and terminated him because it believed employee had engaged in fraud and dishonesty in connection with seeking and obtaining paid leave.

The Court concluded that the employer could honestly believe that the employee was abusing his requested FMLA leave for the following reasons:

[The employer] was under no obligation to ascertain precisely what physical activities he engaged in and compare those activities to his work functions. She was not required to determine how many golf shots Plaintiff took (if any), whether he only walked to the greens to watch people putt, or whether his tubing trip included physical activity beyond simply resting his feet in cold water for three hours. The employer’s decisional process need not be optimal or leave every stone unturned so long as the employer makes a reasonably informed and considered decision.

As for sleeping at work and his termination, the employee claimed his employer tolerated such conduct. The Court did not buy that argument given that the employee was not the only one who was terminated for sleeping on the job and the other terminated employee had not requested FMLA leave.

Takeaways:

First, employee co-workers will ALWAYS make sure employers are aware if employees who are on any kind of medical-related leave appear to be having any type of fun while on leave if that fun is posted anywhere are social media. Social media “friends” in the workplace context, are oftentimes more akin to “frenemies” a/k/a tattletales.

Second, employers who have a good faith, honest belief that an employee is misusing or abusing FMLA leave can typically take an adverse employment action against the employee for doing so without facing an FMLA retaliation claim.

Third, there are two sides to every story. Just because something is posted on social media does not mean it tells the full story. In an employee leave situation, employers should always allow the employee to return to work before taking any adverse action. Otherwise, the employer might as well go ahead and file the employee’s FMLA interference claim for the employee. When the employee returns to work, the employer should conduct a thorough investigation into the matter to determine the exact scope of the employee’s alleged misconduct and only determine an appropriate disciplinary response after the investigation and after knowing the full story.

Lastly, employers should ensure they have policies regarding fraud. In this case, the employer had a spot-on policy for “Sick Benefit Fraud Violation”. Most employers will not have such a specifically-titled policy, but a catch-all discipline policy in an employee handbook that lists various infractions employees may be disciplined for should always include “fraud or dishonesty” to catch these types of infractions. Not only is this type of policy helpful to defend an FMLA claim, but also claims for workers’ compensation, unemployment compensation, and disability benefits.

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