Employees getting terminated for negative comments posted on Facebook about their supervisors. This, I predict, will be the #1 issue facing employers in 2013. But here’s an unusal twist on that story. What about the manager who rants about employees on Facebook? And not a petty rant or a profanity-laden post, either. Just a post that says something to the effect of, “Why’d you call in sick today if you’re at a picnic?” A district court in Texas didn’t have a problem with it.
Plaintiff Virginia Rodriquez was a manager at a Sam’s Club store in Texas when she was put on a performance-improvement plan so that any subsequent violation would result in her termination. Approximately 9 months after being placed on disciplinary status, Plaintiff viewed pictures of co-workers at a July 4th holiday party. Those same co-workers had called in sick to work that day. Apparently, Plaintiff was less than thrilled when she learned that her coworkers were out having fun while she was stuck at work or, perhaps, she was the only one not invited to the party. Either way, she wasn’t happy about her discovery.
To express her displeasure, she posted on one of the employee’s Facebook page, chastising the group for calling out. (The Court describes the comments as “public” but it is not clear whether they were actually public for all the world to see or only viewable by the user’s Facebook friends.) The employee reported the incident to HR. Following an investigation, HR determined that Rodriquez had violated the company’s Social-Media policy by “publicly chastising employees under her supervision, rather than waiting for the associates to return to work to discuss her attendance concerns.” Because she was on probationary status, Rodriquez was terminated.
Sure enough, Rodriquez subsequently filed a charge of discrimination, alleging age and national-origin discrimination and retaliation. The state agency determined the Charge to be without merit but she filed suit anyway. On summary judgment, the court dismissed the plaintiff’s claims, though, finding that the employer had demonstrated that its decision to terminate was based on her violation of the social-media policy. Specifically, the court held, the employer’s decision to fire the plaintiff after she elected to publicly chastise her direct reports via Facebook instead of in person was legitimate and non-discriminatory.
I think most rational minded employment lawyers would agree that the court’s decision was right. There was no evidence that the plaintiff was fired for anything other than her comments on Facebook, which violated the company’s policy. That said, the facts of this case are reflective of the myriad of variations on the same problem–use of social-media to discuss work and co-workers. My prediction stands–this issue is not likely to go away any time soon.
Rodriquez v. Wal-Mart Stores, Inc., No. 3:11-2129-B (N.D. Tex. Jan. 9, 2013).