Social Media and the FMLA

Imagine for a moment: you are the administrator for a skilled nursing facility and your activities director has just informed you of a need to take FMLA leave for shoulder surgery.  You grant the FMLA request and your activities director takes the full twelve weeks he is allowed.  You then learn from his physician that he will need to extend his leave by an additional thirty days to complete physical therapy, which, of course, you oblige as non-FMLA leave.  Everything is fine – until you learn at some point during the director’s non-FMLA leave that he has been quite active and merry during his entire leave, evidenced by numerous Facebook posts showing him visiting Busch Gardens theme park in Tampa (twice), visiting St. Martin for several days, and posing by shipwrecks and cavorting in the ocean.  You learn he also may have been texting pictures of holiday decorations at Busch Gardens to his co-workers, ostensibly to share with them ideas for decorating the facility for the holiday season.  What do you do…what can you do?

This was the actual situation that faced the employer in a recent case from a federal district court in Florida, Jones v. Gulf Coast Health Care of Delaware, LLC.  Ultimately, the facility decided to terminate the activities director, believing that his Facebook and texting activity showed poor judgment as a supervisor and negatively impacted his co-workers.  The facility also claimed that the director’s conduct was prohibited by the facility’s social media policy, which prohibited any “social media usage that adversely affects job performance of fellow associates,” among other things.  The activities director – who later sued alleging FMLA retaliation – claimed that no specific violation of the social media policy was ever given to him as a reason for his termination and that, instead, he was told his was being terminated for abusing the FMLA.

In the end, the court found that the director failed to show causation – i.e. that he was retaliated because of his request to take FMLA leave – and that his retaliation claim therefore failed as a matter of law.  On this point, the court explained that the facility terminated the director for actions while on his FMLA and non-FMLA leave, not for requesting and taking the leave in the first instance, and that courts are generally not in the business of determining whether an employer’s personnel decisions are prudent or fair – as long as they comply with the law.

In this case, the court did not opine in detail on whether the facility’s social media policy tended to make its termination decision more fair than not – nor did it address the interesting question of how the facility actually obtained the director’s social media posts.  On summary judgment, the facts must be construed in the plaintiff’s favor and, in this case, the director disputed that he was told his termination was related to a violation of the social media policy.  Nonetheless, it is more likely than not that the facility’s social media policy would have substantiated its legitimate termination decision – just as it would tend to do for any other employer facing a similar situation.