Does An Employer Violate the FLSA's Anti-retaliation Provision for Firing Employee For Facebook Posting About Payment Practices?

Facebook.jpgOn June 24, 2011, a Florida federal district court dismissed a claim that an employer violated the Fair Labor Standards Act's (FLSA) anti-retaliation provision by allegedly firing an employee who expressed her disagreement over the employer's payment practices on Facebook.

The Plaintiff, Lilli Morse, filed suit against her former employer, J.P. Morgan Chase & Co., under the FLSA alleging it failed to pay her overtime wages. She further alleged that when she complained on her Facebook page, J.P. Morgan retaliated by terminating her employment.

The FLSA Anti-retaliation Provision

Under the FLSA anti-retaliation provision an employer cannot

... discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Act], or has testified or is about to testify in such proceeding, or has served or is about to serve on an industry committee. 29 U.S.C. 215(a)(3).

Earlier this year, the Supreme Court held that this anti-retaliation provision extended to both written and verbal complaints. See Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (U.S. 2011). Specifically, the Court noted that to fall under the anti-retaliation provision, a complaint must be "sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection." And this standard may be met by oral or written complaints.

Expressing Disagreement Over Payment Practices on Facebook is not a "complaint" under the FLSA  

Turning to Ms. Morse's case, the Court acknowledged that the statutory requirement may be satisfied by an "informal workplace grievance procedure." But the Court refused to extend the FLSA's anti-retaliation provision to a posting on an employee's Facebook page because it did not equate a Facebook post with the filing of a "complaint" within the meaning of the FLSA. Specifically, the Court reasoned: 

Morse does not allege that she made anything close to a serious complaint to her employer ... in fact, she never complained to her employer at all. She simply voiced her disagreement with her employer's payment practices on her Facebook page.

Employers Still Must Exercise Caution in Addressing Employment Issues and Social Media

Increasingly Facebook is becoming an acceptable means to fulfill legal related obligations. For example, a Businessweek article (by Heather Smith) discusses foreign courts' acceptance of using Facebook in legal proceedings and foreclosure notices.

It is easy to understand, however, why the Court refused to extend the FLSA's anti-retaliation provision's requirement of making "any complaint" to a Facebook posting. After all, how many times do people express frustration or disappointment through an informal Facebook posting but take no further action, such as actually complaining to their employer? 

But employers still need to exercise caution when it comes to taking adverse employment actions against employees in connection with Facebook and other social media. This is because Section 7 of the National Labor Relations Act (NLRA) protects the right of employees (union and non-union) to engage in "concerted activities" for their "mutual aid and protection." And in protecting such rights, the NLRB has aggressively pursued employers taking action or implementing social media policies that may discourage employees from exercising their Section 7 rights, i.e., talking with each other about protected subjects — wages, hours, and other terms and conditions of employment. In this regard, the NLRB has taken various actions against employers for simply having a policy that may have a "chilling" effect, even absent evidence the employer enforced the policy.

It is, therefore, important for employers to carefully review their employment policies relating to social media, Internet usage, email, and related technologies to assess the potential risks for violating their employees' rights under Section 7 of the NLRA. 

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