Strictly Business

Friday, Feb 22 2013 12:00 PM

ROBIN PAGGI: Facebook photos reveal truth of what workers are up to

BY ROBIN PAGGI Contributing columnist

If you are an employee who likes to post on social media sites, best not to display pictures of yourself having fun when you're supposed to be at home recovering from an illness or injury. That's what a number of people have learned the hard way in a variety of court cases that overwhelmingly sided with employers who had fired employees because their pictures revealed they were not really that ill or injured after all.

For example, Carol Lineberry, a nurse at Detroit Medical Center, was fired after posting photos on Facebook of herself riding in a motorboat and lying in a bed holding up two bottles of beer in one hand. The photos were taken in Mexico while she was on a prepaid, planned trip. Problem is, Lineberry was on Family Medical Leave at the time because of excruciating pain in her lower back and leg pain. She was also receiving short-term disability benefits.

According to court documents, Lineberry's physician said she could not work because of the pain, but could go to Mexico because the trip was not as physically demanding as her normal work duties and would not conflict with her recovery. Lineberry's co-workers and, I'm assuming, Facebook friends, saw her photos, thought she was misusing her medical leave, and complained about it to her supervisor, Jessica Richards.

During this time, Lineberry sent an email to Richards complaining that she had not received a get-well card from the staff. Richards replied that "the staff were waiting until you came back from your vacation in Mexico to determine the next step. Since you were well enough to travel on a 4+ hour flight, wait in customs lines, bus transport, etc., we were assuming you would be well enough to come back to work."

Lineberry replied, "I want to come back to work as soon as possible and wouldn't have went to Mexico if a wheelchair was not available at both airports so I would not have to stand for any length of time."

In an investigative meeting that followed the email exchange, Lineberry reiterated her claim that she had to use wheelchairs in all airports on her trip. When she was told that airports have cameras, Lineberry admitted that she had lied about using a wheelchair, according to court documents.

Lineberry was terminated for violating DMC's policy regarding "dishonesty, falsifying or omitting information, either verbally, in written format (including electronically) on DMC records including, but not limited to payroll records, human resource records etc."

She then sued the medical center, her supervisor and a variety of other people for violating her medical leave rights by: 1) interfering with and denying her right to be reinstated following her leave, and 2) retaliating against her for taking medical leave. She lost.

The court said that, while employers are required to reinstate employees who are on FMLA and cannot retaliate against them for taking the leave, employers are allowed to fire employees who are on such a leave because the employer honestly believes, based upon particular facts, that the employee is being dishonest (which is called, simply enough, the "honest belief" doctrine).

This court case, among many others like it, demonstrates that when employers have policies in place (such as an honesty policy), conducts thorough investigations of policy violations, and takes corrective action based upon an honest belief that a policy had been violated, they have a much better chance of a court finding in their favor.

It also demonstrates that employees who misuse their medical leave and lie to their employer about it will most likely have lots of free time on their hands.

-- Robin Paggi is the Training Coordinator at Worklogic HR Legal Solutions. She can be reached at rpaggi@worklogiclegal.com. These are her opinions, not necessarily those of The Californian.

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