Judge Was Not Amused By Supervisor’s Smiley Face Emoticon

An executive secretary at insurance company Munich Re in New Jersey took extended leave under the federal Family and Medical Leave Act (FMLA) citing her asthma condition.  The company became suspicious that the employee was not really too sick to work, and hired a private investigator to follow her and videotape her public activities.  The investigator captured the asthmatic employee on video shopping at a mall and carrying boxes as she moved into a new home.  When the company saw this video footage, it made the decision to fire the employee for abusing its FMLA leave policy.

The employee sued Munich Re for violating her federal right to take FMLA leave for her asthma condition, claiming that the real reason the company fired her was because it was perturbed that she needed to be out on medical leave from time to time.  In explaining the damaging videos, the employee said her doctor had ordered her to stay active while out on leave, which was why she felt she could go shopping and help with the house move.  ]

During the litigation, the employee’s lawyer requested internal company e-mails sent during the timeframe leading up to the employee’s termination.  In one such e-mail, which was sent the day the employee was fired, her supervisor began with a smiley face emoticon, and asked “:-)) did Ray chat with you about Elaina?”.  Another supervisor responded with, “Yes he did.  Thank you for your help.  That deserves a big :-))!!!”  

The employee argued that the smiley face emoticons in the supervisors’ e-mails showed that the supervisors were all too happy to get rid of her, and merely used the videos as a way to make that happen.  But the company moved to dismiss the case, claiming that the smiley faces in the e-mails were innocuous at best, and that the company had solid grounds to fire the employee for abusing FMLA leave.

A federal judge in Camden, New Jersey refused to dismiss the fired employee’s lawsuit against the company for FMLA retaliation.  In doing so, the judge specifically called out the smiley face emoticons in the e-mails sent between the supervisors on the day of termination, and found that a jury could conclude that Munich Re was happy to terminate the employee because the FMLA leave was inconvenient for them—which is unlawful.  

This case is a timely reminder for companies that snarky remarks and unprofessional digs, whether expressed verbally or obliquely by use of emoticons (or their more refined cousins the emoji—i.e., J), have no place in workplace communications dealing with company business. 

Posted by Declan Leonard, Managing Partner of Berenzweig Leonard, LLP, DLeonard@BerenzweigLaw.com