Author: Rick Bell

When I’m not lawyering, I’m speaking in public. And one of the topics on which I’ve been focusing of late is the balance between an employee’s privacy and an employer’s right to know. 

One of the themes of this talk is that social media has irreparably blurred the line between one’s personal persona and one’s professional persona, and that employees best be careful with what they say online, because employers are watching and holding them accountable.

Case in point? Buker v. Howard County, which concerns a fire department battalion chief, Kevin Buker, fired because of a series of posts (his spelling and punctuation, not mine) to his personal Facebook page.

“My aide had an outstanding idea … lets all kill someone with a liberal … then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal …its almost poetic …”

And …

“To prevent future butthurt and comply with a directive from my supervisor, a recent post (meant entirley in jest) has been deleted. So has the complaining party. If I offend you, feel free to delete me. Or converse with me. I’m not scared or ashamed of my opinions or political leaning, or religion. I’m happy to discuss any 8 of them with you. If you’re not man enough to do so, let me know, so I can delete you. That is all. Semper Fi! Carry On.”

And …

“Unfortunately, not in the current political climate. Howard County, Maryland, and the Federal Government are all Liberal Democrat held at this point in time. Free speech only applies to the liberals, and then only if it is in line with the liberal socialist agenda. County Governement recently published a Social media policy, which the Department then published it’s own. It is suitably vague enough that any post is likely to result in disciplinary action, up to and including termination of employment, to include this one. All it took was one liberal to complain . . . sad day. To lose the First Ammendment rights I fought to ensure, unlike the WIDE majority of the Government I serve.”

Additionally, Buker “liked” a photo, posted by a co-worker, of an elderly woman with her middle finger raised, captioned: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT IT’S MINE[.] I’LL POST WHATEVER THE F**K I WANT[.]”

Finally, he “liked” a racist comment by a co-worker to his “beating a liberal to death” post, which suggested that Buker “pick a black one.”

Based on the totality of these posts, the department fired Buker.

The court had little problem affirming the lower court’s decision dismissing Buker’s claims.

“For several reasons, we conclude that the Department’s interest in efficiency and preventing disruption outweighed Plaintiff’s interest in speaking in the manner he did regarding gun control and the Department’s social media policy. First, Plaintiff’s Facebook activity interfered with and impaired Department operations and discipline as well as working relationships within the Department. … Second, Plaintiff’s Facebook activity significantly conflicted with Plaintiff’s responsibilities as a battalion chief. … Third, Plaintiff’s speech frustrated the Department’s public safety mission and threatened ‘community trust’ in the Department, which is ‘vitally important’ to its function. … Fourth, Plaintiff’s speech — particularly his ‘like’ of the image depicting a woman raising her middle finger — ‘expressly disrespect[ed] [his] superiors.’ Lastly, we observe that the record is rife with observations of how Plaintiff’s Facebook activity … disregarded and upset the chain of command upon which the Department relies. In sum, we conclude the Department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary contained in Plaintiff’s Facebook activity.”

Let me put it another, more practical, way. Many employees have not yet realized that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination.

Until people fully understand that social media has erased the line between the personal and the professional, these issues will continue to arise. It is our job as employers to educate our employees about living in this new online world, because it is clear that not all employees have yet learned this lesson.

And, until they do, employees will keep getting fired for what they post on social media (even on their personal profiles during non-working time).

And I will keep speaking and writing about it.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management.

So, what do you do?

Fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave.

Tread lightly, however, before making that decision, for in Jones v. Gulf Coast Health Care, the 11th Circuit Court of Appeals concluded that based on these same facts, Rodney Jones was entitled to a jury trial on his FMLA retaliation claim.

How did the court reach this (troubling) conclusion?
1. Temporal proximity: The employer suspended Jones on the day he returned from his FMLA leave and fired him a few days later. According to the Court, the “close temporal proximity” between the end of Jones’s FMLA leave and the adverse action is sufficient to create a jury issue on the causation prong of his FMLA retaliation claim.
Me: When is the employer supposed to fire him? During his vacation? Wouldn’t that have created an even closer temporal proximity? Or should it have let him return to work and waited months before announcing its decision? Wouldn’t that have created a jury question on the issue of pretext? (How could the vacation genuinely have motivated the decision if the employer waited months to act on it?) The best practice is never to wait but immediately to advise of the consequences. Yet, by suggesting that such immediacy dooms the employer, the Court is placing all employers in a no-win situation.
2. Pretext: According to Jones, the only explanation the employer provided him “was that he was being fired for abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.” Yet, (a) Jones was not told that he had violated the company’s social media policy or that the company believed he had unnecessarily prolonged his recovery to take a vacation; and (b) because the company lacked a policy that required employees to stay at home or refrain from traveling while on FMLA leave, it could not conclude that he had “violated the ‘spirit’ of medical leave — to rehabilitate and recover.” Therefore, because of these “inconsistencies and contradictions” a jury should decide whether the employer’s explanation was a pretext for retaliation.
Me: The employer advised Jones that it was terminating him for “abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page, that demonstrated his ability to have earlier returned to work.” Must it expressly rely on a written policy (social media or otherwise)? Must a company have a policy forbidding employees on FMLA leave from traveling or vacationing? By taking an FMLA leave for one’s own serious health condition, an employee certifies the inability to work, or the inability to perform at least one essential function of the job). If vacation photos posted to Facebook suggest that the employee had recovered and no longer needed to be out on medical leave, how is the employee not abusing his FMLA leave? And how is an employer not justified in firing the employee for this lie?

This result should disturb all employers. I would have reacted the same way as Gulf Coast Health Care, and, frankly still would despite this decision. The employment relationship is based on trust, and once that trust erodes, the relationship is broken (almost always beyond repair). If an employer concludes that an employee has lied about the need to be on FMLA leave, how can it react any way other than termination?

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message.

I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) [pdf] dashed that hope.

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration.

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!!

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Because the employee couched his MF’ing rant with a decidedly pro-union message, the appellate court held that section 7 protected him and his post.

First, even though Perez’s message was dominated by vulgar attacks on McSweeney and his family, the “subject matter” of the message included workplace concerns—management’s allegedly disrespectful treatment of employees, and the upcoming union election. …

Second, Pier Sixty consistently tolerated profanity among its workers. The ALJ found that Pier Sixty had not previously disciplined employees for widespread profanity in the workplace…. Under the circumstances presented here, it is striking that Perez—who had been a server at Pier Sixty for thirteen years—was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity. …

Third, the “location” of Perez’s comments was an online forum that is a key medium of communication among coworkers and a tool for organization in the modern era. While a Facebook post may be visible to the whole world, including actual and potential customers, as Pier Sixty argues, Perez’s outburst was not in the immediate presence of customers nor did it disrupt the catering event. Furthermore, Perez asserts that he mistakenly thought that his Facebook page was private and took the post down three days later, upon learning that it was publicly accessible.

Have no fear, employers, for despite the NLRB’s victory, the 2nd Circuit did find this to be a close case: