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Employees find Facebook postings not entirely their own

March 11th, 2014  |  Ron Miller

It’s an open secret that human resource professional regularly examine the Facebook and other Internet postings of job applicants to determine if an individual has some issue that make him or her an unsuitable job candidate. It has been suggested that younger generations even have a diminished expectation of privacy in their personal lives than past generations came to expect. Facebook and other forms of social media have become ubiquitous in the lives of a large segment of our population. For some individuals such postings provide not only a means of keeping in touch with friends, but also offer an outlet for frustrations. However, recent cases once again illustrate that in the employment context employee Facebook postings are not just their own.

Confidentiality agreement breach. A discharged headmaster violated the confidentiality clause in his age discrimination settlement agreement by telling his daughter his case had settled, which she then trumpeted to approximately 1200 Facebook friends, many of whom were either current or past students at the school. As a consequence, the headmaster was precluded from enforcing the settlement agreement, ruled a Florida state court of appeal in Gulliver Schools Inc v Snay.

The parties signed the agreement to settle the age discrimination and retaliation claims of the school’s former headmaster based on the nonrenewal of his contract. Only four days after the agreement was signed, the school contacted its former employee to let him know that he had breached the confidentiality clause of the agreement based on the Facebook posting of his college-age daughter, which said “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

“Before the ink was dry,” commented the court, the headmaster “violated the agreement by doing exactly what he had promised not to do.” Moreover, his daughter then did precisely what the confidentiality agreement was designed to avoid, broadcasting to the school community that the headmaster had been successful in his age discrimination and retaliation case.

Confederate flag posted. A deputy police chief at a public university, who was demoted after posting the image of a Confederate flag on his Facebook page was barred from proceeding with his First Amendment retaliation claims, a federal district court in Georgia ruled in Duke v Hamil.

Days after the 2012 presidential election, the officer posted on Facebook an image of the Confederate flag with an accompanying phrase, “It’s time for the second revolution.” Although he intended the image only to be shared with those people with direct access to his Facebook page, someone provided the image to a local television station, which ran a story on the evening news. The story identified his position as a deputy chief with the university police department. Thereafter, the police department received anonymous complaints, and a subsequent investigation by the university resulted in his demotion, and a $15,000 pay cut.

The officer claimed he was expressing his dissatisfaction with Washington politicians. However, the court noted that employers deserved wide latitude in management and needed to be able to take action against employees who disrupted the efficient operation of government. This interest in efficient public service was particularly strong in the context of police departments, which have a particular need to maintain a favorable public reputation. Here, the court determined that the employer had an interest in maintaining its reputation, and good working relationships outweighed the officer’s First Amendment interest.

Facebook rant. Facebook comments by a child protective services caseworker that disparaged clients irreparably impaired her workplace effectiveness, her credibility, and her impartiality as a witness and provided a legitimate basis for her termination, a federal court in Oregon in Shephard v McGee. Applying the five-part Pickering balancing test, the court determined that the employer had a legitimate administrative interest in terminating the employee that outweighed her First Amendment rights.

As a child protective services caseworker who worked closely with attorneys from the district attorney’s office, the employee acknowledged that every case had the potential to end up in court. Her job was “to be a neutral appraiser of the settings in which the children live.” On her Facebook page, she identified her job and her employer, and she had hundreds of friends — including a judge, several district attorneys and defense attorneys, and over a dozen law enforcement officers. She posted Facebook comments complaining about clients with expensive cars, flat screen TVs, etc., who were receiving public assistance. In addition, she posted her own rules for society. Someone forwarded her comments to the department’s HR manager and after an investigation she was fired.

According to her own testimony, the employee had to testify in juvenile court hearing six to eight times per month. Moreover, the attorneys with whom she worked most closely agreed that the caseworker’s bias would have to be disclosed to opposing counsel in all cases. Because the attorneys relied heavily on her ability to present her information in a clear and impartial manner; they feared that as a result of the content of the Facebook posts, they would never be able to call her to the stand due to her credibility being terminally and irrevocably compromised. That these attorneys doubted her was itself a disruption to working relationships and evidence that her ability to perform her job already was impaired, said the court.

Internet posts a “gamble.” Even though these Facebook postings were intended to be viewed by close friends and family, they illustrate the “gamble individuals take in posting content on the Internet.” As the cases illustrate, it is not necessary that the employee’s comments directly impugn an employer to be regarded as against the employer’s interest so as to justify action on its part.