It never ceases to amaze what kinds of social media posts employees feel are OK. How could this man have possibly thought it was appropriate to post this while on FMLA leave?
It was a picture of him swimming off the island of St. Martin. And it was taken and posted when he was on extended medical leave to recuperate from … get this … shoulder surgery!
So, naturally, he was fired. But it was how his employer Accentia Health, a skilled nursing facility that provides long term care, handled his termination that ultimately allowed it to prevail in court when the employee, Rodney Jones, filed an FMLA retaliation lawsuit.
Hard to avoid trial
As you know, it’s hard not to get tangled up in a messy — and expensive — legal battle when an employee is quickly dismissed after returning from FMLA leave. After all, if an employee cries “Retaliation!” it’s hard to convince a judge in that instance that the person’s taking of FMLA leave didn’t play at least some factor in the person’s termination.
That is unless you put together a rock-solid argument to refute the employee’s retaliation claims — which is exactly what Accentia Health did. And as a result, it was able to get Jones’ retaliation lawsuit dismissed before it went to trial.
Here’s what happened:
Leave requested, then extended
Rodney Jones was the activity director at Accentia Health. His job was to decorate the building for holidays and events, maintain calendars, charts and care plans, and oversee outings, parties and recreation for patients.
During his tenure, Jones required shoulder surgery, for which he requested FMLA leave.
His request was granted, and he took his full allotment of 12 weeks of leave. But he still needed more time to recover, and Accentia Health granted him an additional month off (although it classified it as “non-FMLA” leave).
During that month, Jones took two trips to Busch Gardens, as well as the trip to St. Martin.
While at Busch Gardens he took photos of decorations he’d like to incorporate at Accentia Health, which he posted to his Facebook page and forwarded on to co-workers.
Then, he traveled to St. Martin, where he took and posted the photos of him swimming.
Accentia Health caught wind of those photos, and you know what it was thinking: He clearly wasn’t using his leave to recuperate from surgery.
The next steps it took should serve as a blueprint for how other employers should handle similar situations of FMLA abuse:
- Immediately upon Jones’ return to work, he was approached about the photos and informed that he was being suspended from employment pending an investigation into his leave. In other words, it didn’t rush to judgment; it took the time to complete an investigation.
- During Jones’ suspension he was asked to provide additional facts to explain his actions while on leave (after all, perhaps there was more to the story than meets the eye). But apparently, there wasn’t, because Jones declined to provide more facts — and that, ultimately, served as a huge blow to his retaliation claim.
- It used its social media policy as the basis for his termination. The policy stated: “I understand that Social Media usage that adversely affects job performance of fellow associates, residents, family members, people who work on behalf of Gulf Coast Health Care or violates the HIPPA privacy law may result in disciplinary action up to and including termination.” Accentia Health said Jones’ Facebook posts adversely affected the job performance of his co-workers. (Naturally, it can be upsetting to see a co-worker swimming in a tropical location when he claims to be missing work to recuperate from surgery.)
Following his termination, Jones sued Accentia Health. He claimed he was actually fired in retaliation for taking FMLA leave. But the court quickly shot that argument down.
It said that, for starters, Accentia Health approved his FMLA leave with no issue. Then, it allowed him to take additional leave over and above his FMLA entitlement. And when you couple those facts in with what he did while on leave in St. Martin — and the company’s social media policy against making such posts — the court said Jones’ actions while on leave were clearly the reason he was let go. Taking leave was not the issue.
Cite: Jones v. Gulf Coast Health Care of Delaware LLC (d.b.a., Accentia Health)