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Employers, Facebook Can Be Your Friend!

By Christopher A. Johlie - Franczek Radelet P.C.

December 5, 2017

Our past alerts on social media issues typically center on NLRB and court decisions that are not always favorable to employers. A recent arbitration decision, however, highlights that Facebook may provide an employer with the evidence it needs to root out workplace dishonesty.

It seems that an employee at Zimmer Surgical in Ohio had big plans for the weekend, but his regular Friday afternoon shift and a mandatory Saturday shift threatened to rain on his parade. Earlier in the week and at a time the employee knew his work schedule for the weekend, he scheduled two appointments: the first with his chiropractor for Friday afternoon, conveniently at the same time he was scheduled to start work; and the second at a nearby restaurant for a celebratory dinner on Friday evening. On Friday, the employee notified his employer that he would miss his regular Friday shift due to his chiropractor appointment and would also miss his mandatory Saturday shift, no doubt anticipating that his chiropractor would excuse him from working that shift.

In a day and age where people feel compelled to post pictures of all sorts of insipid dining “events” (do we really need to see a picture of Aunt Jane’s flaming crème brûlée on social media?), it should surprise no one that a picture of the employee, along with one of his co-workers, at the restaurant on Friday evening showed up on Facebook. By the next morning, news of the Facebook post spread throughout the plant. Eventually, the company’s Human Resources department got hold of the picture.

On the following Monday, the employee returned to work and presented a “Disability Certificate” signed by his chiropractor stating that the employee, “has been under my professional care and was totally incapacitated” over the weekend in question. Not so fast, said the employer, how do you explain the Facebook picture? Even with the help of his union representative (this case arose in a Steelworker plant), the employee could not explain the disparity between the doctor’s certificate and the Facebook picture, and the employer fired him for dishonesty.

The union filed a grievance on behalf of the employee and claimed that his discharge was not for “just cause” as required by the collective bargaining agreement. During the grievance procedure, the employee provided “clarification” documentation from his chiropractor which back-tracked from the previous statement that the employee was “totally” incapacitated. Now, according to the chiropractor, the employee was better off not working at all over the weekend, but he was ok to go to the restaurant as eating at or sitting in a restaurant would not be harmful to the employee’s condition. The company was unimpressed and stood firm on the discharge.

The case then proceeded to arbitration where the arbitrator had no trouble siding with the employer. He found that the company fairly and reasonably determined that the employee was dishonest based on the Facebook picture that clearly showed the employee’s “relaxed demeanor with no signs of having been treated or experiencing back pain, and absolutely no signs of someone suffering from ill health to the point of being “‘totally incapacitated,’” contrary to the chiropractor’s disability certificate. Importantly, the arbitrator completely rejected the employee’s attempt to “clarify” his doctor’s initial assessment that he was “totally incapacitated.” In a strong rebuke of the chiropractor, the arbitrator dismissed the revised disability assessment as out of touch with the company’s legitimate interest in employee honesty.

Employers are all too familiar with the workplace challenges presented by social media. But not all is lost, and this case stands as an example to employers that some good does spring from social media.

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