FMLA Retaliation Claim Centers on Employee’s Social Media Posts

beachThe Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., guarantees that qualifying employees of covered employers have access to unpaid leave, with protection against interference or retaliation by employers. A federal appellate court recently ruled that an FMLA retaliation claim may proceed. Jones v. Gulf Coast Health Care of Del., LLC, No. 16-11142, slip op. (11th Cir., Apr. 19, 2017). The defendant employer terminated the plaintiff employee after he took FMLA leave, citing vacation photographs posted to social media by the plaintiff during their leave period. Although the case originated in Florida, it could be relevant to New Jersey employment disputes, since no court here appears to have ruled on the specific issue of social media posts during FMLA leave.

The FMLA requires employers with at least 50 employees to provide job-protected leave to eligible workers. The Third Circuit Court of Appeals, whose jurisdiction includes New Jersey, has established standards for retaliation claims. To prove retaliation, a plaintiff must meet a three-part test:  (1) The plaintiff invoked a right to leave under the FMLA, and (2) the employer made an adverse decision that (3) “was causally related to her invocation of rights.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012).

The plaintiff worked for the defendant for about 11 years, from 2004 until his termination in 2015. The defendant operates a facility providing long-term nursing care. The plaintiff’s job involved planning and coordinating events and activities for residents. He requested FMLA leave in 2014 for shoulder surgery, which the defendant granted from September 26 to December 18, 2014. On the final day of leave, the plaintiff’s doctor told him he could not resume regular physical activity at work until February 2015. The plaintiff asked the defendant to allow him to return to work on light duty, but the defendant refused to allow him to return until he “could submit an unqualified fitness-for-duty certification.” Jones, slip op. at 4. The defendant granted the plaintiff an additional 30 days’ leave instead.

During this 30-day period, the plaintiff visited Busch Gardens, a theme park in Tampa Bay, twice. He took pictures of the park’s decorations and “sent these pictures to his staff via text message, hoping to give them ideas for decorating [the defendant’s] facilities.” Id. at 5. He also took a three-day trip to St. Martin, an island in the Caribbean, and posted pictures to his Facebook page. Upon the plaintiff’s return to work in January 2015, the defendant fired him, reportedly claiming that the pictures indicated he “had been well enough to return to work at an earlier point.” Id.

The plaintiff sued for interference and retaliation under the FMLA. The district court ruled for the defendant on all of the claims, but the appellate court reversed this ruling with regard to the retaliation claim. Under the “burden-shifting framework” of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the defendant had to establish a lawful basis for termination after the plaintiff showed that an adverse employment action occurred shortly after he engaged in statutorily protected activity. The court found enough evidence to allow the retaliation claim to proceed, noting that the defendant “could point to no company policy requiring [its] employees to remain at home or refrain from traveling while on medical leave.” Jones at 27.

If you need to speak with an FMLA attorney about a dispute in New Jersey or New York, contact the Resnick Law Group today online, at 973-781-1204, or at 646-867-7997.

More Blog Posts:

Third Circuit Court of Appeals Rules in Employee’s Favor in FMLA Discrimination Claim, The New Jersey Employment Law Firm Blog, June 8, 2017

New Laws, Regulations Regarding Employee Sick Leave Set to Take Effect in New Jersey, The New Jersey Employment Law Firm Blog, November 11, 2016

New Jersey Judge Awards Attorney’s Fees and Costs to Plaintiff in Medical Leave Lawsuit, The New Jersey Employment Law Firm Blog, September 4, 2015

Photo credit: Krisspao (Own work) [CC BY-SA 3.0], via Wikimedia Commons.

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