Legal experts say that litigation resulting from employer misuse of social media information is likely to rise, at least until more case law is established. And even if the company prevails in such lawsuits, there may be reputational risks as the cases grab national spotlight.
Media sources reported that next week, for example, a National Labor Relations Board judge will rule whether American Medical Response of Connecticut illegally fired a worker after she criticized her boss on
Facebook. In what labor officials and lawyers view as a ground-breaking case involving employees and social media, the NLRB stepped in to argue that workers’ criticisms of their supervisors or companies on social networking sites are generally a protected activity and
that employers are violating the law by punishing workers for such statements. According to media reports, American Medical denied the board’s allegations, stating they are without merit, and that “the
employee was discharged based on multiple, serious complaints about her behavior.” The company added that “the employee was also held accountable for negative personal attacks against a coworker posted publicly on Facebook…”
Media sources reported on another pending case, filed in Georgia against a school district, a former high school teacher is claiming that she was essentially forced to resign over Facebook photos that
showed her drinking alcohol during a European vacation.
And in a case settled in 2009, two workers in New Jersey sued their employer, Hillstone Restaurant Group, after they were fired for violating the company’s core values. According to court documents, their supervisors gained access to postings on a password-protected
Myspace page meant for employees but not managers. The jury found that the employer violated the federal Stored Communications Act and the equivalent New Jersey law, and awarded the employees $3,403 in back pay and $13,600 in punitive damages. Hillstone appealed before the parties reached an undisclosed settlement.
Labor relations pros caution that before taking any adverse action based on social media postings, the employer should consider whether the information could be construed as a complaint or report of inappropriate or unlawful behavior. This includes, but is not limited
to discrimination, harassment, unpaid overtime and other wage violations, or any activities that may trigger an employee’s whistleblower protection.