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Hurt Feelings Do Not a Lawsuit Make . . . Even on Twitter

Posted by Molly DiBiancaOn April 20, 2014In: Social Media in the Workplace

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To establish a claim of defamation, the plaintiff must establish that: (1) the defendants made a statement concerning the plaintiff to a third party; (2) that the statement could damage the plaintiff’s reputation in the community; (3) that the defendant was at fault in making the statement; and (4) that the statement either cause the plaintiff economic loss or is actionable without proof of economic loss.  Defamation via Twitter

There are several possible defenses to a claim of defamation.  Two of the most common are that: (1) the allegedly defamatory statement is true; and (2) that the statement was one of opinion, as opposed to fact.  Thus, if you make a negative statement about someone that is true, there can be no liability for defamation.  Similarly, if you merely comment about your opinion, as opposed to purporting to make a factual statement, there has been no defamation.

Defamation by Twitter is no different.  Comments that are merely expressions of opinion, whether made in person, in the local newspaper’s letter to the editor, or on Twitter, cannot form the basis for a claim of defamation.  A federal court in Massachusetts recently explained this idea in Feld v. Conway.

In Feld, the plaintiff brought a claim for defamation based on the defendant’s tweet that the plaintiff was “f—ing crazy.”  The comment was made in response to a thoroughbred horse that disappeared after it was supposed to have been shipped to a horse farm in New Jersey.  The event was the subject of “great debate” in the thoroughbred race horse community, which included the defendant, Crystal Conway.  The tweet at issue was apparently intended to imply that the plaintiff, Feld, was involved somehow with the horse’s disappearance.

The defendant moved to dismiss the complaint, arguing that the comment was merely opinion and, therefore, could not constitute the basis of a defamation claim.  The court agreed.  Finding that, when viewed in the context of the online discussion regarding the horse’s disappearance, the comment that the plaintiff was “f—ing crazy” “cannot reasonably be understood to state actual facts about plaintiff’s mental state.”  Instead, it was “obviously intended as criticism—that is, as opinion—not as a statement of fact.”  As a result, the defamation claim was dismissed.

So, what’s the lesson from this case?  Primarily, it’s this: don’t go suing over cheap insults.  Comments like the one at issue in the above suit are not comments to be taken seriously.  Does that mean that they are not annoying, insulting, and/or distracting?  No, of course not.  Online attacks, like “real-life” attacks, are not pleasant.  But that does not mean that there is a basis to run out and file suit. 

It is a different world today, when individuals and entities alike must deal with negative online commentary.  But hurt feelings do not a lawsuit make.

Feld v. Conway, No. 13-13122-FDS (D. Mass. Apr. 14, 2014).  [H/T to Jay Yurkiw, of Technology Law Source at Porter Wright].

Is It Time to Reconsider Your Personal Email Policy?

Posted by Molly DiBiancaOn April 14, 2014In: Privacy In the Workplace, Privacy Rights of Employees, Social Media in the Workplace

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The Heartbleed Internet-security flaw has compromised the security of an unknown number of web servers.  This is just one story in a string of recent headlines involving the vulnerability of the Internet sites.  But consumers aren’t the only ones affected.  The companies whose websites have been attacked are employers, after all. computer help button

Although data security has become increasingly impossible to ensure, it has also become increasingly critical to employers’ viability.  So employers are looking for ways to mitigate the exponentially increasing risks associated with the Internet.

One option being considered by some employers is blocking employees from their personal, web-based email accounts from the company’s servers.  Companies can install powerful (albeit not impenetrable) spamware that can catch and prevent many Internet-based security threats.  But that spamware works only on emails that come through the Company’s email servers.  Email that is opened through a web-based account, such as GMail or Hotmail is not subject to the company’s protective measures.

Which is precisely why many IT professionals see web-based email accounts as a major security threat.  But what’s an employer to do?  Employers have long been trying to prevent the productivity loss associated with employees’ personal use of the Internet during working time.  But now this effort has become a top priority.

Will employees stop checking their personal email at work if they’re asked nicely?  If they understand the risks?  Maybe.  Maybe not.  But it certainly wouldn’t be a bad place to start.  Perhaps your company should consider explaining to its employees exactly why you don’t want them to check their personal email during working time.  Hey, it’s worth a try.

By the way . . .

Data Security is the topic of one of the sessions at this year’s Annual Employment Law Seminar, which is coming up on May 8.  If you haven’t registered, there’s still time.  Just click here to get to the Seminar Registration page.

Father Learns a Costly Lesson about the Importance of Keeping Promises

Posted by Molly DiBiancaOn March 2, 2014In: Social Media in the Workplace

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When considering whether to settle a lawsuit filed by a current or former employee, many of my employer clients have serious doubts about the usefulness of a confidentiality provision. For good reason, employers don’t want the plaintiff to brag about the settlement, thereby encouraging other potential litigants. But, my clients often ask, will the employee really be silenced? Or will the employee just ignore his confidentiality obligation.  via Shutterstock

My answer has a few parts. First, having a confidentiality provision is better than not having one. Second, if the employer learns of a breach, it will, at least, have some options for holding the employee accountable. A story from last week’s news headlines confirms the validity of both points.

Teenager Dana Snay’s father settled an age-discrimination case brought against his former employer, Gulliver Preparatory School, for $80,000. When the girl learned about the settlement, she did what most teenagers would do—she posted about it on Facebook, broadcasting the news to her 1,200 Facebook friends:

Mama and Papa Snay won the case against Gulliver. . . . Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

Snay was just kidding about her European vacation—there was no such vacation in the works. But that’s probably not what bothered Gulliver. When it learned about the post, it refused to tender the settlement payment to Snay’s father, claiming that the post constituted a breach of the confidentiality provision in the settlement agreement.

And a Florida appellate court agrees. The Miami Herald reports that the court found in favor of the employer when Snay’s father sought to compel payment.

So what are the lessons to be learned, dear readers?

First, don’t underestimate the value of a confidentiality provision.

Second, understand your contractual obligations and abide by them strictly. Although many commentators are blaming Snay for her Facebook chattiness, the real fault lies with her father. He promised that he would keep the agreement confidential and he failed to keep his promise. There are consequences to such failures, which is why we spell them out in written contracts.

Chefs and Employment Law: A Valentine's Day Post

Posted by Molly DiBiancaOn February 14, 2014In: Fair Labor Standards Act (FLSA), Social Media in the Workplace

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Rumor has it that today is Valentine's Day.  Being married to a chef-restaurateur, Valentine's Day doesn't mean "romantic holiday" to me as much as "very, very busy workday."  And, for that reason, I'll dedicate today's post to the food-service professionals who have a long weekend of work ahead of them.

There are plenty of employment-law topics with a chef or restaurant connection.  Here are a few stories from recent history that come to mind.love heart tattoo art

 Wage-and-Hour Claims

Certainly, restaurants are not the only industry subject to wage-and-hour claims by employees.  But there does seem to have been a recent proliferation of settlements of such claims by businesses owned by famous-name chefs. 

There was the $5.25 million settlement forked out by Chef Mario Batali in March 2012, over allegations that servers' tips had been improperly withheld.  Then there was the January 2014 settlement agreement that Chef Daniel Boulud reached with 88 workers who alleged that their pay had been improperly reduced to account for tips, resulting in payment of overtime at an incorrect rate.  The amount of that settlement is confidential.  And, even more recently, there was the $446,500 settlement agreement reached to resolve the wage claims of 130 servers at two NYC restaurants owned by Chef Wolfgang Puck.

Why are so many wage claims against restaurants?  One reason is the complexity of the laws in this area.  The overtime laws are complicated even in the context of an employee who receives hourly wages only.  But, add to that tip credits, earned tips, and tip pooling, and you've got a virtual maze of complex issues.  The laws are not easy to navigate, especially without guidance from experienced legal counsel.

Social-Media Use and/or Misuse

I'd be remiss, of course, if I didn't give at least one social-media related story, too.  So I will end today's post with a reference to a story about a chef who sent a bunch of not-so-nice tweets from the restaurant's official Twitter account after he'd been fired but before (apparently) the restaurant had changed the password on its account.

Chef Grant Achatz, owner of Alinea in Chicago, landed in hot water when he tweeted about a couple who brought their 8-month old to dinner.  I have a definite opinion on this story.  Having been to Alinea, I feel very comfortable saying that it is not a place where an 8-month old needs to be and, if the 8-month old is crying at the top of his lungs, it's not a place where that baby should be.  The restaurant is very expensive, with meals starting at more than $200 per person.  Reservations are wickedly difficult to get with only 80 seats. 

Most important, though, is the nature of the experience.  Diners fight for reservations and pay big bucks for a reason--the meal is something you remember forever.  The food is so far beyond anything else, it's almost an Alice-In-Wonderland experience.  And to have that be ruined by the guests at the table next to you would be, to me anyway, a crushing disappointment. 

So, there.  That's where I stand on the question.  Chef Achatz's tweet did not offend me or make me adore his restaurant any less. 

Delaware Supreme Court Rules On Admissibility of Facebook Evidence

Posted by Molly DiBiancaOn February 12, 2014In: Purely Legal, Social Media in the Workplace

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Employment lawyers know the potential importance of social-media evidence.  I’ve written about numerous cases in which an employee is fired for something he posted on Facebook or other social-media site.  As a general matter, it is not unlawful per se to make an employment decision based on information obtained from a social-networking site.  (Of course, the normal rules apply to social media, too.  Thus, it is unlawful to make an adverse employment decision based on race, religion, gender, etc., regardless of the source of that information.)  Facebook Delaware

So employers may make decisions with social-media “evidence.”  Whether an employer (or other party) has a right to discovery of such evidence during litigation and, if so, how to go about getting it, are two entirely different questions.  (If you’re interested in the answer, here’s a link to an article I wrote last month for the ABA Business Law Section, Discovery and Preservation of Social-Media Evidence). 

Assuming the employer is able to obtain relevant social-media evidence, there is yet another question to be answered—is the evidence admissible in the litigation?  There is a split among courts as to the appropriate standard for admissibility of social-media evidence.  Without oversimplifying it too much, there are two approaches.

First, there is the Texas approach.  That approach requires the proponent of the evidence to make some proffer of authenticity.  In other words, if you want it to come into evidence, you have to make some affirmative showing that it is authentic.  If an employee, for example, denies writing the Facebook post, the employer must offer up some evidence to prove that the evidence is not fraudulent.  In short, under the Texas approach, the proponent does not necessarily need to prove that the social media evidence is authentic, so long as a jury "could reasonably find” the evidence authentic.

Second, there is the Maryland approach.  This approach imposes a higher standard and requires that the proponent of the evidence offer some sort of evidence to show that the posts are authentic.  For example, the proponent could ask the supposed author (i.e., employee) if he or she created the profile or post, search the internet history and hard drive of the purported creator’s computer, or obtain information from the social-networking site itself.  Those courts that have followed the Maryland approach cite to a concern that social-media evidence could be fake or otherwise inauthentic.

The Supreme Court of Delaware has now weighed in on the question.  In Parker v. State of Delaware, decided last week, the state’s highest court adopted the Texas approach.  Specifically, the Court acknowledged that social-media evidence could be falsified but concluded that such evidence should be treated like other forms of evidence.  In other words, where a proponent seeks to introduce social-media evidence, he or she may use “any form of verification” available under the Rules of Evidence, including:

witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question.

This is, in my opinion, the correct approach.  Social-media evidence should not be made more difficult to authenticate merely because it is “possible” to falsify such evidence.  All evidence can be falsified.  To make the proponent attempt to authenticate a Facebook post by obtaining some kind of verification from Facebook is more than highly impractical—it can be close to impossible since Facebook will not release much, if any, user information absent a criminal subpoena or written consent from the user himself. 

This ruling is an important one—in Delaware and in those jurisdictions where the issue has not yet been decided—and I hope more courts adopt a similar finding. 

Parker v. State of Delaware

, No. 38, 2013 (Del. Feb. 5, 2014).

Demoted for Posting Picture of Confederate Flag on Facebook Page

Posted by Molly DiBiancaOn February 6, 2014In: Public Sector, Social Media in the Workplace

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Public-sector employees have First Amendment rights.  But those rights are not without limits.  Employers, too, have rights—in particular, the right to operate an effective and efficient workplace.  Law-enforcement agencies get even more protection because the law recognizes the potential for harm to the department’s reputation and the public’s trust.

And how do all of these rights play out in the context of social media?  Usually in the employer’s favor.  As yet another court opinion shows, police officers have very little latitude when it comes to posting controversial views on their personal Facebook pages. 

The plaintiff in this case, Deputy Chief Rex Duke, worked for the Clayton State University Police Department for eight years with no performance problems.  Shortly after the presidential election in November 2012, the plaintiff posted a picture of a confederate flag to his Facebook page with the comment, “It’s time for the second revolution.”

confederate flag

His Facebook profile and posts were accessible only to his Facebook friends. His profile did not indicate that he was employed by the Police Department or even that he was a police officer. And he took the post down within an hour after posting it.

But that hour was long enough for one of his “friends” to send a screenshot of the post to the local TV station. A story ran that evening on the local news about the post and the plaintiff’s position as Deputy Chief.

The Police Department received anonymous complaints about Plaintiff, prompting an investigation. Following he investigation, the plaintiff was demoted in rank and duties and his pay was cut. The plaintiff sued the Police Department, alleging First Amendment retaliation.

The court upheld the demotion, finding no unlawful imposition by the employer on the plaintiff’s right to free speech.  The basis for the court’s opinion was the potential disruption and/or actual disruption caused by the plaintiff’s posts.  In most circuits, including the 11th Circuit, potential disruption can be sufficient justification for an employer’s interference with an employee’s right to free speech.  Here, the court explained, there was not only potential for disruption caused by the plaintiff’s post but there was actual disruption, as well, as evidenced by the complaints the Department received. 

Are these consequences harsh?  Most definitely.  Remember, the post was not publicly accessible and was up only for an hour.  But that doesn’t mean that the consequences were unlawful. 

Duke v. Hamil, No. 1:13-cv-01663-RWS, 2014 U.S. Dist. LEXIS 13388 (N.D Ga. Feb. 4, 2014).

Disruptive Facebook Posts Warrant Termination

Posted by Molly DiBiancaOn February 3, 2014In: Social Media in the Workplace

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Employers continue to struggle with how to deal with the repercussions of employees’ online commentary.  When an employee is critical of his or her employer, supervisor, or coworkers on Facebook or other social-networking site, the employer’s knee-jerk reaction is often to discipline the employee.

Sometimes, that is the appropriate reaction.  And, sometimes, it is not.  How to tell which reaction is appropriate for any given comment (or series of comments) is the hard part.  I encourage employers to handle the situation as if the comments were made at a bar over the weekend or on the sidelines of a softball game—anywhere outside of the workplace—in an effort to put it into context.  I then counsel them that, if they still think a response of some sort is warranted, to proceed just as they would in any other workplace investigation.  Facebook firing

In other words, it’s best not to get all twisted about the fact that the conduct occurred online or that the comments were made via Facebook. 

A recent case from the 10th Circuit is a great example of that advice applied.  In Debord v. Mercy Healthy System of Kansas, Inc., the employee, Ms. Debord, was criticized by her boss, Mr. Weaver, after which, he tried to give her a hug.  (Hugging is, in my opinion, not all right at work.  I am not alone in this position, either.  See NPR, “A New Rule for the Workplace: ‘Hug Sparingly’”). 

In response, Debord posted—from her workplace computer, during working time—several posts to her Facebook page.  The posts contained comments critical of her employer, of Weaver, and of co-workers.  And some of the posts accused Weaver of unlawful and/or unethical behavior.  Several co-workers saw the posts and reported them to management.

Later that day, Debord was meeting with the company’s HR Director about an unrelated issue when Weaver interrupted and confronted Debord about the posts.  Debord denied having written any such comments.  Weaver brought in his laptop and showed the HR Director the posts on Debord’s Facebook page.  Debord again denied writing them. 

The HR Director met with Debord two days later and she again denied that she had written the posts on her Facebook page.  She finally relented, though, and admitted to her conduct.  She was suspended for one day without pay for acting in a manner inconsistent “with a high degree of personal integrity and professionalism.”  After it was determined that the allegations about Weaver were without any basis, Debord was terminated for “disruption, inappropriate behavior, and dishonesty.”

Debord sued on a number of bases but her termination was upheld by the district court and on appeal.  In other words, the 10th Circuit didn’t take issue with the termination of an employee because her Facebook comments caused disruption in the workplace.  Nor should there be an issue.  The employee used company resources to make false allegations about her boss, which were seen by several of her co-workers.  This conduct, to be sure, resulted in a disruption. 

Where there is an actual disruption caused by an employee’s activities—online or offline, there may be a legitimate basis for discipline.  But not always.  Here, the employee’s comments were elevated to a more serious level because they accused her boss of unlawful and/or unethical conduct.  That is a legitimately serious issue that the employer should address appropriately. 

Debord v. Mercy Health Sys. of Kan., Inc., 737 F.3d 642 (10th Cir. 2013).

Discovery and Preservation of Social Media Evidence

Posted by Molly DiBiancaOn January 27, 2014In: Purely Legal, Social Media in the Workplace

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This one is for the litigators in the group.   An article I wrote about the discovery of social-media evidence is now available online at Business Law Today, a publication by the ABA Business Law Section.  My article, Discovery and Preservation of Social Media Evidence, is one of several in a mini-theme issue focusing on Social Media and Business Law.  like tweet share follow letterpress

Other feature articles include:

-The Threat of Social Media Diligence on the Confidentiality of the M&A Process: The Problem and Possible Solutions, by Jonathan D. Gworke

-10 Tips for Avoiding Ethical Lapses When Using Social Media, by Christina Vassiliou Harvey, Mac R. McCoy, Brook Sneath

-Privacy and Social Media, by Theodore F. Claypoole

Enjoy!

No Love for Twibel Lawsuit Against Courtney Love

Posted by Molly DiBiancaOn January 27, 2014In: Social Media in the Workplace

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“Twibel” is the sporty little name someone clever has come up with as a way to say “libel via Twitter.”  In other words, if it would be defamation if it is published in a newspaper, it will be defamation if tweeted on Twitter.  And now we have a case that has gone all the way to jury verdict on just this subject. signing twitter bird with bow

Courtney Love was sued by her former lawyer, Rhonda Holmes, for defamation via Twitter (Twibel is not yet an official cause of action).  Holmes claimed that she had been defamed by the famous singer when Love tweeted that Holmes had been “bought off.”

Love didn’t settle the case, instead choosing to take her defense to a jury.  According to the Hollywood Reporter, Love testified that she believed that her comment was true at the time she posted it.  She also testified that she meant the message to be a private “direct message” to two friends and when she learned that it had been sent to the public, she quickly deleted it.

The jury was asked to decide whether Holmes proved by clear and convincing evidence that Love knew her tweet was false or doubted the truth of it.  The jury returned an answer of “no” and Love prevailed. 

So what’s the lesson to be learned?  Well, for one, defamation cases are hard to win, regardless of the medium of the message.  It often comes down to credibility of the witnesses.  And, apparently, the jury believed Love when she said that she didn’t mean to make false statements about her former attorney.   If nothing else, this verdict won’t prompt a wave of Twibel claims to be filed.

The Risk of Fishing for Support in an Employee Discipline Matter

Posted by Molly DiBiancaOn December 18, 2013In: Social Media in the Workplace

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Ah, Facebook. I wonder, sometimes, what I’d write about it Facebook hadn’t made its way into the workplace. There’s another recent decision involving an employee’s misuse of Facebook and the consequences of his decision.

The facts of the case—as opposed to the legal analysis—are what captivated me.  They offer an excellent example of the problems that arise when employees vent their frustrations on social-media sites, such as Facebook.

The plaintiff was employed as an Assistant Professor at the University of Southern Mississippi.  His employment was at-will and his contract was subject to non-renewal “for any reason.”

In 2010, the plaintiff was teaching an online course that included a “chat component.”  This enabled students to type comments and questions in a dialogue format.  During one of these chats, the plaintiff was logged out, so, to those students who were still logged in, it appeared that he was not viewing the the discussion.  But, alas, he was.

During one of these chats, a student made disparaging comments about the plaintiff, apparently not realizing that he was still online and could view the comments.  After the chat ended, the same student sent an email to an administrator, complaining about the quality of the plaintiff’s instruction. 

The next day, the plaintiff told a graduate assistant about the student’s comments made during the chat.  The assistant, apparently concerned with the way the plaintiff responded to the comments, reported the matter to the plaintiff’s direct supervisor, who, in turn, reported it to her supervisor.  The decision was made to remove the plaintiff from campus until the matter could be further investigated.  As a result, the plaintiff was placed on paid administrative leave.

While on leave, the plaintiff sent messages to students and others via email and Facebook requesting that they provide support for him in his dispute with administration.  The plaintiff also posted on Facebook the letter placing him on administrative leave, as well as the written statement of the graduate assistant, which had been obtained during the course of the investigation.

At the conclusion of the investigation, the plaintiff’s contract was not renewed.  In part, the decision was based on the plaintiff’s Facebook campaign initiative to get students’ support.  The plaintiff brought a variety of constitutional claims contesting the non-renewal decision. 

The court dismissed the claims but made specific note of the Facebook posts.  The court noted the disruptive nature of the posts.  The court also pointed out that the plaintiff “understood that a Facebook friend could forward his posts to anyone.”  If I were to summarize the lesson to be learned, as indicated by the court, they’d be as follows:

If you take your case to the streets and try to rally support, understand that you may lose  and be prepared to accept the loss.

To the victor goes the spoils.

Klinger v. Univ. of S. Miss., No. 12-150-KS-MTP, 2013 U.S. Dis. LEXIS 171515 (S.D. Miss. Dec. 5, 2013).

Facebook Posts by Police Officer Not Protected by the 1st Amendment

Posted by Molly DiBiancaOn December 10, 2013In: Public Sector, Social Media in the Workplace

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Public-sector employers can add yet another “W” in the “Win” column on the Facebook-firing scorecard.  The victory comes by way of a federal court in Mississippi where, earlier today, a judge granted summary judgment to the City of Greenville in a First Amendment claim brought by a former police officer, Susan Graziosi.

Graziosi was employed by the Greenville Police Department for 26 years at the time she posted a series of comments on her Facebook page and the Facebook page of the then-mayor, complaining that the Chief of Police had not sent police-officer representatives to the funeral of an officer killed in the line of duty. 3d police officer

The comments weren’t outrageous, frankly.  No profanity, for example.  They were, however, decisively negative about the Chief’s leadership of the Department. 

Upon learning of the comments, the Chief spoke to the City Attorney and expressed concern about his ability to lead the Department in light of Graziosi’s posts.  Her employment was subsequently terminated for her violation of several Department policies, including Supporting Fellow Employees, Insubordination, and Discipline & Accountability. 

Graziosi appealed to the City Council but the termination decision was upheld and she filed a First Amendment retaliation claim in federal court.  Regular readers of this blog are likely more familiar than they’d like to be with the applicable test for a First-Amendment claim.  But, hey, it’s a classic, so bear with me while I go through it again.

In order for a public-sector employee to state a claim under the First Amendment in a “Facebook-firing” case, the court must determine that the speech at issue is entitled to constitutional protection and that the employee’s free-speech interests outweigh the employer’s interest in maintaining an efficient and effective workplace.  A review of any of the cases discussed in my previous posts (see the links, below), shows that the analysis usually comes out in the employer’s favor.  This is especially so in police and other paramilitary institutions because the law recognizes the need to maintain discipline and good working relationships amongst employees. 

And that is precisely what the court determined in this case, too. The court held that Graziosi’s venting on Facebook did not enjoy First Amendment protection.  Moreover, the Chief’s interest in maintaining his authority and preserving close working relationships outweighed any constitutional protection Graziosi’s speech may have had.  Thus, the court concluded, Graziosi’s termination was entirely lawful. 

Another win for employers in the workplace battle involving social media.

Graziosi v. City of Greenville, No. 4:12-cv-68-MPM-DAS, 2013 U.S. Dist. LEXIS 172581 (N.D. Miss. Dec. 3, 2013).

See also

Fed. Ct. in Oregon Upholds Facebook Firing of DHS Employee

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

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And, if you haven’t yet cast your vote for the Delaware Employment Law Blog in the Labor & Employment category in this year’s ABA Journal Top 100 Blawgs, there’s still time!  Voting closes next Friday, December 20, though, so don’t delay.  And thank you!

Winter Woes: Employment Discrimination Via Facebook

Posted by Molly DiBiancaOn November 24, 2013In: Hiring, Social Media in the Workplace

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Do employers search social-media sites, like Facebook and Twitter, before hiring a potential employee?  Yes.  Like it or not, they do.  Sometimes as part of an official screening process but, more often than not, the act of Googling is simply second nature and is done without any advance planning or thought. Cold weather woes

And, as a result of these online searches, do employers screen out candidates for unlawful reasons, such as race, religion, or pregnancy?  Yes, says the results of a recent survey reported by the Wall Street Journal

According to the study, as many of one-third of employers search for a job applicant’s online activity early in the hiring process.  The survey also claims that candidates whose public Facebook profiles indicated that they were Muslim were less likely to be called for interviews than Christian applicants. 

Perhaps it’s because the weather has turned cold in the Northeast and it’s put me in a cantankerous mood, but I take issue with the implications of these results. 

First, if a hiring manager has a bias, either consciously or subconsciously, against a particular class of candidates, he is no more likely to act on that bias merely because he learns that an applicant falls into the class via Facebook.  There are numerous studies that show that a candidate’s surname can impact whether he is called for an interview. 

Second, this discriminatory screening happens only if a candidate’s online information can be seen by the hiring manager.  The most recent data of which I am aware says that less than 25% of Facebook users maintain a public profile.  Good digital citizens who are seeking employment know not to keep their Facebook page public for all to see. 

Third, the WSJ article concludes with a quote from an employment lawyer, who reports that he "advise[s] employers that it’s not a good idea to use social media as a screening tool.”  Well, I’ve been saying it since 2005 and I’ll continue to say it now, hogwash.  The hiring decision should be made with great care. Internet searches for applicant information can be excellent tools, provided they are conducted in a legally defensible manner.  

Moreover, employers should not deny the reality that their hiring managers are searching online for information about a potential candidate.  Instead of turning a blind eye to this reality, employers are best advised to address it by implementing best practices to prevent unlawful discrimination, while still ensuring the best possible hiring decisions. 

See also, Screening Job Applicants with Facebook: Parts 1, 2, and 3

Another Facebook Firing Is Upheld

Posted by Molly DiBiancaOn November 11, 2013In: Public Sector, Social Media in the Workplace

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Employees in the private sector do not have free-speech rights in their employment, contrary to popular belief.  Employees in the public sector, on the other hand, do have such rights, although they are not limitless. When it comes to First Amendment challenges to Facebook firings, employers continue to prevail in nearly every case.  Here is another such victory.

The plaintiff worked as a case worker for child-protective services investigating reports of child abuse and neglect.  In that role, she was charged with determining whether a child was safe in his or home.  If she determined that the home was unsafe, she worked with the District Attorney’s Office to petition the court for protective custody.  She testified in court about eight times a month.

In making these determinations, she was not supposed to consider the employment status, religious beliefs, or political beliefs of the adults in the home and was not to concern herself with how they chose to spend their money or furnish their home.

Plaintiff, of course, had a Facebook page.  In her profile, Plaintiff identified herself as a case worker for the Department of Human Services (DHS).  Her Facebook profile did not include a disclaimer that the opinions were her own and not those of her employer.  Plaintiff had hundreds of Facebook friends, including a judge, at least three deputy district attorneys, several defense lawyers, and more than a dozen law-enforcement officers.

She posted several negative comments about clients who drove luxury vehicles or had expensive home-entertainment systems.  In another post, she proposed a set of “rules for society,” which included:

(1) If you are on public assistance, you may not have additional children and must be on reliable birth control . . . (2) If you’ve had your parental rights terminated by DHS, you may not have more children . . . (4) If you are on public assistance, you may not own a big flat screen television; . . . (6) If you physically abuse your child, someone should physically abuse you.

A copy of the posts were forwarded to the Director of HR at DHS.  When confronted with the posts, Plaintiff admitted that she had written them and that she did hold some of the opinions that she’d expressed in the posts.  She was put on administrative leave while the matter was investigated.

As part of the investigation, the Director of HR spoke with the attorneys at the District Attorney’s office and Department of Justice that plaintiff worked with most often.  The attorneys expressed concern that the Facebook posts would be subject to discovery and that they would have to be disclosed to defense attorneys in any case involving physical abuse.  They also said that she would likely be questioned about the posts, which would be detrimental to the agencies’ ability to effectively prosecute these cases.  In effect, they said, the credibility and neutrality required of a DHS case worker had been all but destroyed, rendering her virtually useless a witness for the prosecution.  As a result, her employment was terminated.

She filed suit, alleging that her termination constituted a violation of her constitutional right to free speech.  The suit was dismissed on summary judgment.  The court explained that, even assuming the speech was subject to the protections of the First Amendment (i.e., that it was on a topic of public concern), the employer’s interests outweighed the employee’s. 

This case serves as a good reminder to public- and private-sector employers alike that, when presented with information about an employee’s Facebook or other social-networking posts, the best course of action is a calm and rational one.  Investigate like you would with any other complaint.  If the online conduct impairs the employee’s ability to perform the essential functions of the job or if it causes real disruption to the employer’s operations, discipline may be in order.

Shepherd v. McGee, No. 03:12-02218-HZ, 2013 U.S. Dist. LEXIS 159432 (D. Ore. Nov. 7, 2013).

See also

Facebook Post Leads to Complaint, Leads to Termination, Leads to Lawsuit

11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).

Oops! My Bad! Facebook Firing Based on Mistake

Posted by Molly DiBiancaOn November 5, 2013In: Social Media in the Workplace

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Contrary to popular belief, employees may be lawfully terminated for comments or pictures that they post on social-networking sites. The law also permits employers to make honest mistakes. An employer who makes the decision to terminate an employee based on an honest, but mistaken belief that the employee violated the employer’s policy, is not a basis for liability.oops

The same rule applies in the context of social media. Thus, there will be no liability for an employer who lawfully terminates an employee based on online conduct even if it turns out that the conduct did not occur.

Take a recent decision from the Seventh Circuit as an example. In Smizer v. Community Mennonite Early Learning Center, the plaintiff was a teacher’s aide at a church-affiliated daycare center run by his mother. His mother informed the Center’s Board of Directors that the plaintiff had posted “horrible stuff” on his Facebook page and that she no longer felt safe in his presence.

She asked that the plaintiff be fired for “creating a hostile work environment” and then “set about gathering the evidence to dismiss him.” The plaintiff was later fired for “insubordination and unprofessional conduct” based on his alleged Facebook posting. The plaintiff, however, denied writing the post. And the Center never produced a copy of the alleged post.

The plaintiff sued, alleging he was terminated for a variety of discriminatory reasons. His termination was upheld, though, showing yet again that, so long as the termination is not based on unlawfully discriminatory reasons, no liability will attach.

Smizer v. Comm. Mennonite Early Learning Ctr., No. 13-1828 (7th Cir. Oct. 25, 2013).

Facebook Post Leads to Police Complaint, Leads to Termination, Leads to Lawsuit

Posted by Molly DiBiancaOn October 30, 2013In: Public Sector, Social Media in the Workplace

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Employee posts “unpleasant” comment on Facebook.  The subject of that comment complains to employee’s employer.  Employer terminates employee.  Employee sues the complaining party—not the employer.  Interesting, right?  Here’s the case.

The plaintiff alleged that she worked as a case manager in San Antonio public schools.  She claimed that she alerted the San Antonio Police Department (SAPD), when she learned that an individual subject to a restraining order had contacted a student in violation of that order.  Officers were dispatched to the student’s home but no action was taken because the officers did not believe there to be a valid protective order in place.  

The plaintiff, believing that an order did exist, was frustrated by her feeling that the officers “did not want to do their job to protect her student.”  From her home later that day, the plaintiff posted to her Facebook account a profanity-laden comment about the “lazy ass, mother-effers on B-shift who don’t care to do their jobs the way they’re supposed to.”

The plaintiff’s husband, who was also an officer on the SAPD, allegedly received unspecified threats from other officers.  The plaintiff also claimed that a copy of her Facebook posting was displayed at the police station.

About a week later, the plaintiff claims that two officers went to the high school where the plaintiff was assigned and told the principal that they needed to speak with the plaintiff about “a complaint.”  The plaintiff claims that, after she arrived, one officer told the principal that the plaintiff should be disciplined for her Facebook message and that failure to do so would “endanger relations” between the police department and the high school.  The plaintiff also claims that one of the officers demanded that she apologize for the posting but that she refused to do so, citing her right to free speech.

She was fired the following day.  She sued the individual officers and the SAPD on a variety of constitutional grounds. The defendants moved to dismiss.

Most of the claims were dismissed but her First Amendment claim survived.  She had, after all, alleged that she engaged in constitutionally protected activity—i.e., her Facebook post.  She also claimed that the police officers told the principal that, unless the plaintiff was disciplined for that protected speech, the school’s relationship with the police department would be “endangered.”  And she was terminated the next day. 

Those facts, the court concluded, were sufficient to establish the cause-and-effect relationship necessary to survive a motion to dismiss.  As I indicated above, this case is particularly interesting because the employee did not sue her employer but, instead, sued the police—the party that she believes caused her employer to terminate her employment. 

Had she sued the employer, her claims would have been subject to a different analysis and would likely have come out in the employer’s favor.  This tactic wouldn’t work in every situation—it works here only because the complaining party (the SAPD), is a public entity.  If private citizens had complained, the plaintiff would have had very different claims.  For an example, see this recent post about a lawsuit brought by an employee about a customer who complained about the employee via social media

Do these cases indicate an expansion of likely defendants?  Will there be less lawsuits against employers or just more lawsuits altogether? 


Perez v. Tedford, No. SA-13-CV-429-XR, 2013 U.S. Dist. LEXIS 151149 (W.D. Tex. Oct. 22, 2013).

See also 11th Cir. Upholds Discipline of Police Officer for Facebook Post

No Privacy Claim for Use of Student’s Facebook Picture

Is There a Reasonable Expectation of Privacy In Your Tweets?

Police Officers Online: Web 2.0 Worries for Public Employers

Employee’s Facebook Posts Protected by First Amendment

Government Employers Can (and Should) Have a Social Media Policy, Part 1, Part 2, Part 3 (an in-depth discussion of the First Amendment protections for public-sector employees' speech, including speech made via Facebook).