Employees Using Social Media, Can Anything You ‘Post’ Be Used Against You?

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By Thomas D. Rees, Esq.

May 2, 2014

 

Sometimes I think that, before they post about individual employment issues on social networking sites, social media users should see a warning similar to the Miranda warning: “You have the right to remain silent; anything you say may be used against you!”

In two recent cases, heeding this warning could have prevented a job loss or loss of a valuable settlement.

 

Case #1:  Sometimes, you may even have a duty to remain silent!

Employers and employees settle termination and discrimination cases every day.  Typically, the employer pays the employee an agreed upon sum, the employee releases the employer from all liability, and both parties agree to keep the settlement confidential.  Keeping the settlement confidential suggests the following rule: No discussion on social networking sites!

In Gulliver Schools v. Snay, So.3d, 2014 WL 769030 (Fla. App. Feb. 26, 2014), the plaintiff’s college-age daughter violated this rule, with disastrous results.  She used Facebook to discuss her father’s confidential $80,000 settlement of his employment dispute with a private school.  The daughter said, “Mama and Papa Snay won the case against Gulliver.  Gulliver is now officially paying for my vacation to Europe this summer.  S**K IT.”  The daughter sent the posting to 120 Facebook friends right after the parties entered into the settlement.

The school found out about the post.  The school refused to make the settlement payment, contending that the daughter’s Facebook post breached the settlement agreement. (The agreement required the plaintiff to disgorge the whole settlement amount on the breach of the confidentiality agreement.)  The father sued to enforce the agreement, won at the trial court level, but lost on the school’s appeal.  The father said he had not told the daughter that he had won his case, but he had mentioned the settlement to the daughter, even though the agreement allowed only disclosure to his spouse.  Ironically, the daughter had no plans to go to Europe.

The temptation to vent is strong, and social media is an available vehicle to vent. But a confidential settlement agreement of an individual employment claim is just that – confidential– and therefore not a wise subject for a social media posting.

 

Case #2: Don’t air dirty family laundry and expect to keep your job in a family concern!

In Smizer v. Community Mennonite Early Learning Center, 538 Fed. Appx. 711 (7th Cir. 2013), affirming 2013 WL 1154263 (N.D. Ill. Mar. 19, 2013), three generations of one family worked in a nonprofit preschool.  The mother was the Executive Director, the grandmother was a volunteer, and the son worked as a teacher’s assistant.  The son supported his sister in a bitter custody dispute over the sister’s daughter; the mother and grandmother took the opposite side.  When the court ruled for the sister, the son apparently posted a profanity-laden tirade on Facebook, directed at the mother and grandmother.  The mother learned about the post through various employees and individuals who were the son’s Facebook friends.  The mother fired her son for insubordination because of the Facebook post.  The son sued for gender discrimination, and denied making the Facebook post.  The courts upheld the termination on summary judgment, citing the mother’s reasonable belief that the son had posted the offensive message.

The Gulliver and Smizer decisions lead to one more rule for employees, totally aside from the importance of the confidentiality issues:  It’s a good idea not to gloat in public when you win a point on your employer, particularly in profane or snarky terms.

Finally, before posting a controversial Facebook message, individual employees would do well to remember the lament of one of our least effective Presidents, Warren G. Harding.  As his presidency unraveled because of the corruption of his Ohio cronies, Harding said: “I have no trouble with my enemies….  But my friends, my g*d-d**ned friends, they’re the ones who keep me walking the floor at night!” 

 

NOTE:  This blog addresses social media postings regarding individual issues and employers in the private sector.  It does not address the possibility that postings about working conditions might be treated as a concerted activity that is protected by the National Labor Relations Act (aka the Wagner Act).  Nor does it address issues related to postings by public employees, which may in certain situations be protected constitutionally.

 

For more about these cases or employment law, please contact Thomas D. Rees at 610-275-0702 or by email at trees@highswartz.com.

 

The information above is general: we recommend that you consult an attorney regarding your specific circumstances.  The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

 

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