‘I’m not out here’: Facebook fishing trip video dooms worker’s FMLA claim

Story by Jennifer Carsen for hrdive.com

Dive Brief:

  • Union Pacific Railroad (UP) was justified in firing an employee who took Family and Medical Leave Act (FMLA) leave and then appeared in a co-worker’s Facebook live video of a fishing trip on one of the days he was out, a California district court said (Dunger v. Union Pacific Railroad Company, et. al., No. 18-cv-6374 (C.D. Calif. June 3, 2019)).
  • The employee had previously taken intermittent leave on multiple occasions, without repercussions, for a hiatal hernia and gastroesophageal reflux disease. When questioned about the video, in which he said, “I’m not out here,” the employee initially said he could not recall whether it was him before admitting it. He was fired for violating UP’s policy against dishonesty and misusing FMLA leave.
  • Because it was undisputed that UP had a legitimate, non-pretextual, nondiscriminatory reason for firing the employee — his violation of the policy — a federal district court in California granted UP’s motion for summary judgment.

Dive Insight:

Employers understandably want to crack down on FMLA abuses, and they are justified in doing so. But caution is necessary. If employers are snarky or hostile when they suspect misuse of FMLA, employees can get defensive and suspicious, which can lead to lawsuits. A Massachusetts jury recently awarded $2 million to an employee accused of FMLA abuses because the employer didn’t investigate in good faith; it started its fact finding with a “presumption of wrongdoing.”

Managers, too, should be trained about the basics of the FMLA and to keep their emotions in check. Many experts say that managers are a leading driver of employment law violations, and that includes FMLA leaves.

Attorney Jeff Nowak, a shareholder at Littler Mendelson P.C., recommends maintaining and enforcing call-in procedures, training supervisors and managers, documenting thoroughly, and communicating with employees before, during and after an FMLA leave. Additionally, the Wage and Hour Division of the U.S. Department of Labor offers compliance resources for employers, including an FMLA PowerPoint.

Nowak advises giving notice that you have a policy of checking in on employees who are using paid sick leave, and then actually doing so. At least one court, he said, has okayed this approach.

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