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Facebook posts at center stage in recent employment litigation rulings

November 19th, 2015  |  Lorene Park

By Lorene D. Park, J.D.

Facebook posts by employees and supervisors often take center stage in employment litigation. In recent cases, posts have been the subject of disputes over what constitutes protected NLRA activity, what is actionable as harassment, what is fair game in discovery, what constitutes protected speech under the First Amendment, and more. Consider the following.

NLRA-protected activity. The Second Circuit affirmed the NLRB’s conclusion that a restaurant violated the NLRA by firing nonunion employees who were caught venting on Facebook about having to pay extra taxes due to their employer’s alleged tax withholding mistakes. The comments did not lose protection just because they included obscenities that could be seen by customers (such as calling a manager an “asshole”). Such a ruling would result in the chilling of virtually all employee speech online, the appeals court noted, also affirming that the employer’s overbroad Internet/blogging policy barring “inappropriate discussions” violated the NLRA (Three D, LLC dba Triple Play Sports Bar and Grille v. NLRB).

In another dispute, an NLRB law judge found unlawful a convention center’s discharge of a banquet server for posting on Facebook cell phone pictures of employees on break and for the allegedly derogatory comments the pictures engendered. The ALJ found her conduct protected, although not concerted, and ordered her reinstatement with back pay. Although the employer argued the employee was fired for violating the company’s cell phone use policy as well, “the fact that one reason for a disciplinary action is lawful in no way diminishes the fact that the other reason was unlawful,” the ALJ said, noting the absence of evidence that the cell phone violation was the sole reason for her termination. The ALJ also found several work rules overbroad, including those on disloyalty, confidentiality, and discourteous conduct (Tinley Park Hotel and Convention Center, LLC).

Discriminatory enforcement of social media policies. A white male reporter fired for violating a Louisiana TV station’s social media policy after posting a comment on his Facebook page, in which he referred to a viewer by name, called him a moron, and stated that he was “damn tired of stupid people,” raised fact issues as to whether he was treated less favorably than two female reporters who also mocked viewers on Facebook and whether his comments actually violated the policy. His discrimination claims will go to trial (Redford v. KTBS, LLC).

In two female employees’ sex discrimination suit, a federal court in Florida refused to exclude from trial evidence that while the women were disciplined for Facebook comments about a former coworker, male employees were treated more leniently for worse conduct, including being arrested and using racial slurs at work. This, said the court, could demonstrate discriminatory animus against women (Bush v. Gulf Coast Electric Cooperative, Inc.).

Protected activity in retaliation claims. An older employee who had just received an outstanding performance review but was fired two days after posting complaints on Facebook that her workers’ comp claim was mishandled and that she felt she was being discriminated against because of her age, survived summary judgment on her age discrimination and retaliation claims. In particular, the court pointed to testimony by the decisionmaker that the employee’s Facebook posts played a role in the termination decision; she testified that the post created a “general feeling of hostility” (Brown v. Oakland County).

Actionable online harassment. An EMT who, while on leave as a result of a work-related injury, received a series of Facebook messages from an office computer that referenced her participation in a sexual harassment investigation, called her a “whore,” noted her mother’s frail health, and insulted her children, was not precluded from relying on the messages to support her gender- and retaliation-based hostile work environment claims, even though they occurred outside the workplace. A reasonable jury, said the court, could consider them in determining the cumulative effect of the incidents she purportedly endured after complaining about harassment (Maldonado-Catala v. Municipality of Naranjito).

The basis for defamation claims. A Swedish citizen on a J1 visa employed for less than seven months was awarded $18 million in damages based on her defamation and sexual harassment quid pro quo claims, which arose in part from the actions of a CEO who became angry after she rejected him and he found another man sleeping on her couch. After he threw her out of the apartment and terminated her, he began to post Facebook messages and photographs in which he “tagged” her, as well as her family and friends. Many of the pictures showed her face together with stock images of explicit pornography and drug use (Bouveng v. NYG Capital LLC dba New York Global Group).

Free speech by public employees. In some cases a public employee’s Facebook posts have been considered speech protected by the First Amendment, but that is not always the outcome. For example, a fire chief’s termination did not violate his First Amendment rights because he was not speaking on a matter of public concern when he warned his firefighter employees by email and Facebook posting that “we could potentially be out of a job” because the town was facing an insurance coverage crisis, held a federal district court in Ohio, dismissing his claim on summary judgment. He was speaking on a personal issue (Holbrook v. Dumas).

In another case, a court dismissed a myriad of constitutional and statutory claims brought by a national guardsman who was disciplined after he emailed an objection to a same-sex wedding at the military academy’s chapel and posted a disparaging rant about his commanding officer on his Facebook page. The court determined, among other things, that his speech was unprotected and that his Religious Freedom Restoration Act claim failed because he asserted only that his religious belief—rather than a religious action or practice—that same-sex marriage was a sin was substantially burdened. His religious belief did not become a protected religious exercise simply because he expressed it through speech (Wilson v. James).

The Third Circuit recently dealt with a case where students circulated on Facebook a teacher’s blog, which expressed hostility and disgust toward students. Even assuming the blog posts touched on matters of public concern, her “scornful” tone regarding her students, filled with “personal invective,” caused such a significant disruption that her employer’s interests outweighed the public interest in her speech and her termination did not run afoul of the First Amendment (Munroe v. Central Bucks School District).

Fair game in discovery. Facebook posts by employees, their supervisors, and other players in an employment law dispute are often found discoverable. In an ADA case by an employee who claimed her employer failed to accommodate her narcolepsy, a court held that she was entitled to have her attorney review the social media accounts and activities of her former supervisor as well as the HR official instrumental in the decision to terminate her. The court rejected the employer’s motion for a protective order in response to interrogatories—a request that mirrored the employer’s requests for her social media information. Her request for a protective order was denied because she had claimed emotional distress and her emotional state (expressed on Facebook) was relevant, as were the times she was obviously awake and online (Appler v. Mead Johnson and Co., LLC).

In another case in which a nurse claimed she was fired in violation of the ADEA, the employer’s motion to compel was granted with respect to the nurse’s social media posts concerning her lawsuit. The nurse’s protestations that she lacked computer sophistication and had experienced technical difficulties were not persuasive (O’Malley v. Naphcare, Inc.).

Other issues. Cases from earlier in the year involving Facebook and other social media can be found in an earlier blog by Employment Law Daily, Social media and employment law—are courts catching up? Those cases included additional issues of note, such as whether a class action notice can be sent out through Facebook and whether the identity of members in certain LinkedIn groups can be considered a trade secret. As the article suggests, this is a rapidly developing area of law and employers are well advised to obtain expert legal advice before adopting and enforcing social media policies.

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