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Circuit Court Says “No” to Facebook Posts Being Used to Retaliate Against an Employee on FMLA Leave

May 15th, 2017 by David Minces

With summer approaching, we can all expect our social media feeds to be flooded with beach and pool pictures of friends, family, and coworkers. Rodney Jones, a former employee of Accentia Health, posted some snapshots of his vacation to St. Martin and trips to Busch Gardens theme park to Facebook.

Unfortunately for Mr. Jones, when he returned to work, he was terminated, presumably for these photos. The problem Accentia had with the posts were that Mr. Jones was on FMLA leave for shoulder surgery. Mr. Jones’ argument was that he was on extended “non-medical” leave that was approved by his employer to complete physical therapy, and that the company’s social media policy prevented termination based on private, personal posts. While the company didn’t mention the photos as the reason for his termination, Mr. Jones said there was no other reason to fire him and the company’s inconsistent reasons for termination attributed to this presumption. The 11th Circuit Court said Mr. Jones’ termination raised a issue of fact as to whether Accentia was retaliating against him for taking FMLA leave. The 11th Circuit’s decision should give employers more reason to be cautious about handling employees who have taken FMLA leave. While FMLA leave does not make an employee bulletproof, employers should strive for clarity, consistency, and fairness if reprimand is needed for a returning employee who has taken medical leave. Additionally, this decision says a lot about the bounds of social media access by employers, at least in the 11th Circuit. The court seemed to enforce that business and pleasure should be kept separated, especially when that notion is backed by a company policy. Overall, the legal subject of social media access still leaves a lot to be desired in the employment context.

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