Nyemaster Goode, P.C.

Facebook is Employer's "Friend"

By Amanda Atherton 


In a case out of the Eastern District of Michigan last month, an employer successfully used information obtained via social media to defend itself against a former employee's Family and Medical Leave Act claim.  In Lineberry v. Richards, 2013 WL 438689 (E.D. Mich. 2013), the employee was a Registered Nurse at the hospital employer.  After a back injury, her doctor ordered her not to return to work and the employer approved three months of FMLA leave. 


While on leave, the employee took a trip to Mexico and posted photographs on Facebook of herself riding in a motorboat, drinking beer, and holding two of her infant grandchildren, one in each arm, while standing.  The employee's coworkers saw the Facebook posts and complained to the employer.  When questioned, the employee insisted she was not well and explained she was in so much pain that she had to use a wheelchair at the airport and could not stand for more than 10 minutes at a time.  The employee later admitted she lied about needing a wheelchair and the employer terminated her for fraudulent use of FMLA leave. 


The employee claimed the employer interfered with her FMLA rights and retaliated against her for exercising those rights.  The court granted summary judgment in favor of the employer.  The court quoted 29 C.F.R. § 825.216(a): 


An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. 


The court held that "[b]ased on such undisputed dishonesty, Defendants had a right to terminate Plaintiff – without regard to her leave status because the FMLA does not afford an employee greater rights than she would have if she was not on FMLA leave."  


This case is another example of a case in which the employer not only benefitted from an employee's use of social media, but likely would not have even been aware of a policy violation without it.


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