Facebook video sinks employee’s FMLA claim

Everything was going swimmingly for Thomas Dunger during his approved FMLA leave from his job as a mechanic for Union Pacific Railroad … until he decided to go on a fishing trip during his leave and a co-worker started live streaming their excursion on Facebook. A coworker showed the video to Dunger’s supervisor, who charged him with dishonesty for improper FMLA use. To his benefit (or, cynically, because he knew he had been hooked), at his disciplinary hearing Dunger copped to the fishing trip. His late-to-the-game attempt at honesty, however, did not save his job, and Union Pacific ultimately fired him. 

In Dunger v. Union Pacific Railroad Company (C.D. Calif. 6/3/19) [pdf], the district court had little difficulty in concluding that Union Pacific had a legitimate basis to conclude that Dunger had dishonestly misused his leave by going fishing. The court rejected Dunger’s arguments that he had not done anything on the fishing trip inconsistent with his medical restrictions, and further that he could not have dishonestly used his FMLA leave to go fishing because the trip occurred between shifts.

None of that evidence supports an inference that UP impermissibly used Plaintiff’s taking of FMLA leave as a factor in the decision to terminate Plaintiff. Even if Plaintiff was able to successfully identify flaws in UP’s reasons for Plaintiff’s termination, Plaintiff has provided no basis to infer that UP relied on anything other than Plaintiff’s dishonesty, which is a lawful basis for termination, in terminating him. As a result, no reasonable fact finder could determine that Plaintiff’s taking FMLA leave was a negative factor in his termination.

There is little doubt that FMLA abuse by employees remains a problem for employers. My friend Jeff Nowak, at his always excellent FMLA Insights blog, offers his top 10 tools to keep these employees honest, including enforcing call-in rules, certifying and recertifying the need for FMLA leave, and checking in on employees while on leave. To his list I’ll add the importance of clear communication with employees about your expectations of them while on leave.

In the Dunger case, the employee claims to have misunderstood his responsibilities while out on FMLA leave. He thought that he could take his trip (a) because fishing wasn’t inconsistent with the medical restrictions for his hiatal hernia and gastroesophageal reflux disease, and (b) because he took his trip during a time when he wouldn’t otherwise have been working. The employer, however, viewed this as FMLA misuse and fraud. Clear communication on the front end could have established expectations (don’t do anything physical; leave means leave, not vacation) and (maybe) avoided an expensive and time consuming (albeit successful) lawsuit.

* Image by PublicDomainPictures from Pixabay