Can Your Employer Fire You For Posting Vacation Photos to Facebook?–Jones v. Accentia

I posted about this case a year ago at Forbes, and it remains one of my most-read blog posts of all time. The legal question is simple: can an employer fire an employee because of the employee’s vacation photos posted to Facebook? The district court said “sure.” The 11th Circuit says “not so fast…”

Jones worked as “Activities Director” at Accentia Health and Rehabilitation Center of Tampa Bay. He went on FMLA leave for shoulder surgery. Right before he was scheduled to return, his doctor said he needed to extend his leave for 45 days. Jones offered to return on light duty, but the employer required a fitness-for-duty certification. So Jones took a month-long non-FMLA leave. During this non-FMLA period, Jones visited Busch Gardens and his family in St. Martin. He “posted photos from these trips on his Facebook page, including pictures of himself on the beach, posing by a boat wreck, and in the ocean.” When Jones finally returned to work with the doctor certification, his employer confronted him with the Facebook photos, saying they indicated he was healthy enough to come back to work earlier. He was suspended and then fired shortly thereafter.

The appellate court rejected Jones’ claim that firing him interfered with his FMLA rights:

Because Jones likely waived his FMLA right to reinstatement by taking an additional 30 days of medical leave, because he failed to submit a fitness-for-duty certification by the end of his FMLA leave, and because the record is devoid of proof challenging Accentia’s contention that its fitness-for-duty certification policy was implemented in a uniform fashion, Jones lost the right to be reinstated after failing to comply with this policy.

However, the court is more sympathetic about Jones’ claim that his employer retaliated against him for taking the leave. Jones didn’t have direct evidence of retaliation, but the court says the short turnaround between his leave and his firing can support a causal inference. The employer had difficulty providing credible evidence of non-retaliatory motives for the firing, making the proffered explanations appear pretextual. For example:

Accentia also argues that Jones was terminated for posting photos on Facebook that violated the company’s social-media policy, which states that employees can be terminated if their social-media posts have an adverse effect on coworkers. Daniels claimed that these posts had an adverse effect on Accentia employees because the photos were anonymously reported and because he heard gossip regarding the photos circulating throughout the workplace. Accentia maintains that these photos therefore created a morale issue among employees.

But Jones was not informed during his suspension meeting or in his termination letter that he had violated Accentia’s social-media policy. In addition, Daniels conducted no further investigation regarding the anonymous complaint, and neither he nor any other Accentia official could identify any employee who was adversely affected by Jones’s Facebook posts. Finally, there is evidence that the purpose of Accentia’s social-media policy, as discussed during managerial training, is to prevent employees from posting harmful or negative comments about the company’s staff or facilities. Jones’s Facebook posts were clearly far afield from this area of concern.

As a result, the appellate court revives Jones’ case.

While Jones may have gotten a raw deal from his employer, the fact remains that employers can and routinely do fire employees for their social media posts. We’ve probably blogged a couple dozen of those cases, and that’s just the tip of the iceberg. The FMLA angle gave Jones a legal argument that most fired employees won’t have. As I wrote in my prior blog post: “before you post to social media, it’s always a good idea to think about how your employer will react to your posts.” If there’s any doubt about how your employer will respond, it’s better to enjoy your vacation in private than from the unemployment line.

Case citation: Jones v. Gulf Coast Health Care of Delaware, 2017 WL 1396165 (11th Cir. April 19, 2017)