Candid Camera? Not So Much

A picture tells a thousand words.   Some of you remember “Candid Camera”, the original reality show that aired in the 1960s and came back for subsequent reruns, where people were recorded reacting to strange and often embarrassing situations.    All of you will likely remember “Punk’d”, the Ashton Kutcher-created show that began in 2003.   Both shows preyed on the unwitting participant. 

An employer-friendly decision was just issued last week by the Sixth Circuit Court of Appeals in Jaszczyszyn v. Advantage Health Physician Network, which provides reason number 1,257 for why employers can sometimes put an employee’s social media use to good use.    The decision contains a lengthy description of the factual and procedural background, which you can read here.  But the predicament of this plaintiff/employee is stated rather succinctly in the very first two sentences:

“A year-and-a-half into [Plaintiff’s] employment with [Advantage], she began taking intermittent FMLA leave related to worsening pain from a back injury sustained ten years before.  About five weeks into her leave, several of her coworkers saw pictures of her drinking at a local festival on Facebook and brought the matter up with their supervisor.”

Woops.   Smile, you’re on candid camera?   You’ve been Punk’d?  But wait…  what?  You put some of these pictures on Facebook yourself?  Fortunately for employers, dumb is not yet a protected class.   Indeed, it is hard to cry “foul” when you’ve essentially punk’d yourself.

And that’s essentially what the employer here benefitted from.  The Facebook pictures showing Plaintiff drinking at a local Polish heritage festival became a problem, not only because she was supposedly out due to a physical incapacitation, but also because her co-workers who saw the photos “felt a little betrayed or duped by [Plaintiff] because they were trying to cover for her only to see her out on Facebook partying.” 

Yet, Plaintiff sued after her employer terminated her employment for fraud, and, specifically, abuse of her FMLA leave.   She argued that the company retaliated against her and interfered with her statutory right to take a medical leave.  The first court dismissed the case before it ever got to a jury, and the appellate court now confirmed that that first decision was correct.  After reciting a lot of legal principles, the appellate court determined, among other things:

“While [Plaintiff] relies heavily upon a significant amount of after-the-fact medical evidence (such as the deposition of her treating physician) in trying to cast Advantage’s justification as pretextual, Advantage’s investigation was adequate and turned in large part on [Plaintiff’s] own behavior at the termination interview, which she does not address at all.  She did not refute Advantage’s honest belief that her behavior in the photos was inconsistent with her claims of total disability.”

Employer Take Away:   What should you as an employer take away from this development?   

While you must remain vigilant in understanding the potential pitfalls of making employment-related decisions based on employee social media use, your company still can and should take full advantage of any advantage that social media brings.  You certainly do not want to surreptitiously obtain or monitor your employee’s Facebook page or other social networking activity, and you still don’t want to be “trigger happy” when making a decision. 

But when faced with potential evidence that your employee is engaging in conduct that is inconsistent with statements made to you, or with your company’s policies and practices, figure out the best way to use that evidence.   As Daniel Powter sang in 2005:

“You had a bad day

You’re taking one down

You sing a sad song just to turn it around

You say you don’t know

You tell me don’t lie

You work at a smile and you go for a ride

You had a bad day

The camera don’t lie.”

About Michael Schmidt

Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.