In previous articles, we discussed the explosive growth of social media in employment practices and explored its impact on the hiring process and during an employee”™s time with a company. This week we address issues concerning the use of social media in termination decisions.
There is a growing body of case law regarding adverse employment actions taken by employers after the discovery of facts arising from social media. Multiple courts have acknowledged that an employer”™s use of social media may be permissible in making a termination decision. But the key issue for an employer is not the source of the information that has prompted the adverse action, but how it came to learn the information and whether the employees”™ conduct, even if distasteful, is protected activity.
Two cases illustrate this point. In Jaszczyszyn v. Advantage Health Physician Network, the court affirmed that the defendant company neither retaliated against its employee, nor interfered with her rights under the Family Medical Leave Act (FMLA). The company fired an employee for fraud following the company”™s investigation that included an examination of the employee”™s Facebook pictures. The plaintiff had been on FMLA leave for a purported serious medical issue that supposedly precluded her from working when fellow co-workers saw Facebook pictures the plaintiff posted showing her at a local festival. After other employees brought the pictures to management”™s attention, the company fired the employee for fraud.
By contrast, in Pier Sixty LLC v. Perez, the National Labor Relations Board (NLRB) affirmed a decision that the employer violated the National Labor Relations Act by firing an employee for an obscenity-laced Facebook post toward a supervisor. The NLRB found that the employee”™s post, while offensive, was protected concerted activity because the employee”™s comments were directed at his supervisor”™s asserted mistreatment of employees and sought redress through the upcoming union election.
The Advantage Health decision demonstrates that where there is no connection between the adverse action and protected employee activity, an employee may be terminated. In contrast, the Pier Sixty decision shows that an employee”™s vulgar and offensive speech online is not a basis for termination if it is accompanied by protected speech.
But employees are not entitled to post online with impunity. In Karl Knauz Motors Inc., d/b/a Knauz BMN v. Becker, the NLRB upheld an employee”™s termination where the employee posted photos and comments online making light of a serious accident at work involving the car dealership”™s decision to allow a customer”™s underage child to sit in the driver”™s seat. The child then put the vehicle in motion and an accident occurred. The board found that the employee”™s postings were not protected activity and upheld his termination.
Courts have also held that an employer may terminate an employee for violations of the company”™s social media policy, but the company may expose itself to potential discrimination claims if the company does not apply that policy consistently. For example, the court in Rodriguez v. Wal-Mart Stores Inc. upheld a company”™s termination of a manager for the manager”™s breach of the company”™s social media policy. The manager had posted comments to her employee”™s Facebook page chastising the employee because the employee posted photos showing the employee at a Fourth of July party when the employee had called in sick. The manager violated the company”™s social media policy by publicly chastising the employee under her supervision rather than waiting for the employee to return to work to discuss the manager”™s work attendance concerns.
The decision in Redford v. KTBS LLC shows the danger of inconsistent application of a social media policy. There the court denied the company”™s summary judgment motion that a white male reporter”™s sex and race discrimination claims should be dismissed. The plaintiff was terminated for violating the TV station”™s social media policy for negatively commenting on a viewer”™s post on his Facebook page, while two female reporters, one white and one African-American, received lesser discipline for similar actions.
Pointing to the inconsistent application of its policies, the court held there were sufficient factual issues outstanding that precluded granting the company”™s summary judgment motion on both claims.
The key lessons concerning termination decisions predicated upon social media are: a lack of pretext, consistent application of a uniform policy and connections between the improper use of social media and the basis for the adverse employment action.
Information found on social media cannot be used as a pretext to fire an employee who is otherwise engaged in permissible activity. Social media policies and violations of those policies should be applied in an even and consistent manner to avoid allegations of discrimination. And employers cannot use information discovered on social media to take adverse action where the information also shows protected employee activity.
The use of social media in employment practices, whether in hiring, during an employee”™s tenure at the company or in making termination decisions, is best informed by traditional employment law concepts regarding discrimination, harassment and retaliation. Employers should educate their employees as to the company”™s use of social media and ensure that the use of social media comports with legitimate, nondiscriminatory objectives. Education and awareness will help companies successfully navigate the current social media challenges they confront and provide a flexible framework to apply to future social media issues that are likely to arise.
Myles Bartley and Jeffrey I. Carton are partners at Denlea & Carton LLP, a boutique litigation law firm in West Harrison serving clients in New York, Connecticut, New Jersey and Massachusetts. Bartley can be reached at mbartley@denleacarton.com or 914-331-0107. Carton can be reached at jcarton@denleacarton.com or 914- 331-0100.
