By: Jonathan L. Brophy

Employers know all too well, or are learning very quickly, that the intersection of their anti-harassment policies and their employees’ Facebook posts is something of a moving target.  Employers often feel unsure as to how far they can go in investigating an employee complaint of a co-worker’s internet conduct.  The United Supreme Court recently alleviated some of this uncertainty for employers that investigate claims of harassment but then, in the process, also encounter employees who lie about their Facebook posts.  The Court recently refused to review a Tenth Circuit decision Debord v. Mercy Health System of Kansas, Inc., 737 F.3d 642 (10th Cir. 2013), and in doing so, let stand some of the guidance provided by that Court.

The Employee’s Facebook Posts and Termination of Employment

In Debord, the employee posted on Facebook that her direct supervisor had intentionally overpaid employees and that he “needs to keep his creapy hands to himself . . . just an all-around d-bag‼”

The supervisor, who had seen the Facebook posts himself, reported the employee’s comments to the employer’s HR director.  The employee lied to the HR director, on three separate occasions, about posting the comments to her Facebook account, but then later admitted to posting the comments herself.  While the company was investigating her concerns, the employee then sent text messages about the investigation to other employees.

The company then terminated the employee for her dishonesty over authoring the posts while at work and her disruptive behavior during the investigation.  Plaintiff, however, then sued for sex discrimination and retaliation alleging, in part, that the employer fired her because of her Facebook posts.

The 10th Circuit agreed with the trial court that the employer acted lawfully when it fired the employee.  The Court noted that the employee’s Facebook posts did not amount to a legally protected complaint of sexual harassment.  First, the Facebook posts did not comply with the employer’s flexible system for reporting sexual harassment complaints.  Second, the Facebook posts did not provide any notice to the employer.  Finally, the employer did not fire the employee because she posted on Facebook, rather it fired her because she was dishonest about the posts and for being disruptive during the employer’s investigation.

This case scenario presents a couple of key take-aways for employers.

Beware of the Pitfalls of Investigating On-line Conduct

  • No Shoulder Surfing.  Many states now prohibit employers from asking an employee for their social media password or from accessing their social media sites in the presence of the employer.  In Debord, the supervisor and several other employees saw the publicly posted comments and the supervisor reported it—the employer did not actively seek out the social media information.  Be sure to know your jurisdiction’s current rules on accessing employee’s social media.  Seyfarth recently published a desk reference covering this topic.
  •  Balance Your Investigations.  Many states also now prohibit employers from retaliating against employees who refuse to provide access to their social media accounts—but exceptions may exist if the employee’s social media content is relevant to allegations of employee misconduct or employer policies.  Again, it is imperative to be current on the rules that apply in your jurisdiction.

  • Consider If Postings Are “Concerted Activity”.  In September 2011, the National Labor Relations Board concluded that an employer had improperly terminated employees it had perceived as violating the employer’s harassment policy because those employees were engaged in protected concerted activity when they posted comments about their supervisor.  In contrast, in Debord, the employee was not terminated for posting about her supervisor on Facebook, but rather for lying about posting while at work and for her disruptive behavior in the investigation that followed.  When investigating complaints about work made on Facebook, employers must consider whether there are any implications of “concerted activity” raised by the employees’ posts.

Employers should review their social media policies to ensure that the policies provide the most protection for the employer to enforce its anti-harassment, trade secret and other policies, but that the policies also do not unlawfully prohibit protected concerted activity.

Be sure to download Seyfarth Shaw’s Social Media Desktop Guide by clicking here.  Or contact the author or a member of Seyfarth Shaw’s Social Media Practice Group to get more information.