By Seth L. Laver, Esq., Michael P. Luongo , Esq. and Gary A. Marshall, Jr. Esq. of Goldberg Segalla
Had a great vacation? Post it on Facebook. Fun surfing? Post that too. Swam some laps while on FMLA leave due to a shoulder injury? You should probably keep that one to yourself. Employers continue to struggle with balancing their own marketing interests with the interests of employees in maintaining a social media presence. Of course, an employee’s use of social media may not always comport with an employer’s interests as identified in its social medial protocols or otherwise conflict with accepted practices. Take for example the recent decision from the Middle District of Florida.
Plaintiff was employed for a nursing facility as an activity director. He required shoulder and applied for FMLA leave, which was granted. While on FMLA leave, the plaintiff visited a theme park and posted pictures of the visit on his Facebook page. The plaintiff also posted pictures of his visit to St. Martin, including a picture of the plaintiff swimming in the ocean. The nursing facility learned of the Facebook posts and confronted him. The employer also asserted that the posts were prohibited by its social media policy. Plaintiff was fired.
The plaintiff claimed that the nursing facility was using the social media policy as a pretext to terminate him based on a perceived abuse of his FMLA leave, and filed suit asserting a retaliation claim under the FMLA.
The court noted that a retaliation claim requires the employee first to show that the employer’s actions were motivated by an impermissible animus. When this standard is satisfied, the burden shifts to the employer to state a legitimate reason for the adverse action. If the employer does so, the burden shifts back to the employee to show that the reason was pretextual by presenting evidence that the reason given by the employer was not the real reason for the adverse employment decision.
The court concluded that the plaintiff’s actions on FMLA leave, which were documented on Facebook, led to his termination and that an employer’s stated reason of violating the company social media policy did not conflict with federal law. Accordingly, the court dismissed the retaliation claim.
Employers must have clear social media policies outlining the standards of conduct for employees to follow. Social media policies not only put employees on notice of what type of activity is acceptable, but also protect employers who take action against employees who violate those policies.
For additional information, please contact Seth at firstname.lastname@example.org – (267)519-6877, Michael at email@example.com – (267)519-6852 or Gary at firstname.lastname@example.org – (516)281-9810