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FMLA Information and more analysis of Social Media and Discovery

The FMLA Insights blog has an interesting post about FMLA
leave during the holiday season
. The post lays out a hypothetical scenario
where an employee requests vacation leave, has the request denied, and then
instead calls in sick and requests FMLA leave- a situation the employer feels
is a dubious use of FMLA. The blog looks at some lawful measures employers can
utilize to get at the truth.

The author recommends that an employer can, at the initial
medical certification stage, include a letter questioning whether the leave is
being taken for a valid reason. While the health care provider is likely to
certify the employee, the letter at least sends a message that the employer
takes FMLA abuse seriously. Employers should also work with health care
providers to seek clarification. In the event that a certification is on file,
an employer could also argue that requesting FMLA leave for days for which
vacation leave was previously denied could constitute a “significant change in
circumstances” which would allow the employer to request a new certification of
the employee’s health issue. Additionally, the employer can include a personal
certification phase that requires the employee to provide a reason for taking
leave- as long as the practice is usual and customary to avoid a claim of
discrimination. Finally, there are a few FMLA cases that support an employee’s
termination if the employer has an honest belief the plaintiff was abusing
leave due to an unusual patter of absences that coincided with days for which
leave was previously denied.

The Employer Handbook continues our theme of looking at the
intersection of social media policies and employment law by examining a
judicial opinion that opens the door for more employers to look at online
accounts during discovery
. In the case, the plaintiff, a female secretary,
claimed her boss, an attorney, sexually assaulted and harassed her.

The defendant noticed the plaintiff had a Facebook account,
with some portions (including pictures with captions) that were publically
accessible. Among the public posts were those that did not go along with a
picture of someone who had been emotionally scarred by sexual harassment (the
posts were lewd and/or provocative). The defendant then demanded to see other
posts that were password-protected.

The court acknowledged that social media may be
the source of relevant information for the purposes of discovery. The court
also noted that in regards to emotional distress, speech (both online and
offline) may be reflective of a plaintiff’s emotional state. As such, because
the public portion of the plaintiff’s Facebook page provided “probative
evidence of her mental and emotional state,” it opened the door for the
consideration of her private posts. As long as the information was posted
online, regardless of her privacy settings, the court found it was fair to
allow discovery of the plaintiff’s information because there was no guarantee
it would stay private. In sum, the court found that looking at the plaintiff’s
online posts was a fair and relevant way of measuring the effect the unlawful
workplace behavior had on her- with the calculation of damages being a key
issue.