The recent termination of an employee (Adria Richards) after she tweeted her displeasure at off-color jokes told by certain fellow attendees at an industry conference she attended on behalf of her employer has resulted in a lot of good discussion (see here and here for examples) about the increasing intertwining of social media and employment legal issues.
But employees are not the only ones that face unintended legal consequences when it comes to using social media. Consider for example the results of a president of a chain of bar and restaurants who took to social media - blogging and Facebook - to expound on Karma and an employee being a "b**ch" and asking for the strength to not kill another employee after a wage and other employment lawsuit was filed. Unfortunately, this rant was made while litigation was pending against the employer.
Specifically, a court allowed the plaintiff employee to amend her Fair Labor Standards Act claim (PDF)to add a claim for retaliation. The plaintiff alleged that after her FLSA claim was filed the defendant's president posted an entry on a blog maintained on the Coyote Ugly Saloons' website and this posting was in retaliation for having engaged in activities protected by the FLSA. The blog posting reads as follows:
This particular case will end up p*ssing me off cause it is coming from someone we terminated for theft. I have to believe in my heart that somewhere down the road, bad people end up facing bad circumstances! I have been reading the basics of Buddhism and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously, I am still a very new Buddhist cause my thoughts are f***k that b*tch.
The subject of the post had been reinstated by the time the blog post was published. Making matters worse, another supervisor allegedly posted on Facebook (when drunk) about another plaintiff who was still employed but had joined the suit: ”Dear God, please don’t let me kill the girl that is suing me . . . . that is all ....”
It isn't hard to imagine God and Buddha laughing together at the expense of the Coyote Ugly.
The Take Away for Employers
The Buddha probably would be the first to say that this president has a long way to go on the Eight Fold Path (a central concept in Buddhist doctrine). And most, if not all, lawyers would be the first to tell an employer and its management to "shut up" when it comes to talking about employment lawsuits, or more eloquently advise companies not to discuss any pending employment related litigation outside of key management personnel. Not only is this zone of silence essential for protecting confidential attorney-client communications, but it is also critical to avoid what happened to the Coyote Ugly employer: The pending lawsuit got even uglier as a result of these social media diatribes in that it gave the plaintiff employees a retaliation claim to pursue in addition to the FLSA claim.
Additionally, employment counseling and education is a critical component for avoiding or mitigating against employment discrimination and related claims. Equally important is incorporating a non-retaliation mentality throughout the company that must be drilled into management. At a minimum, an employer's position that retaliation will not be permitted should be reduced to provisions in the employer's policies and handbooks as well as made clear to managers.
As far as social media policies go, this case and similar instances concerning issues at the intersection of the employment and social media law make it clear that companies need to have a well-thought out and meaningful social media policy in place that balances both the legal compliance and business needs of the equation.
And in light of this particular case, perhaps that social media policy needs to include a provision to the effect that employees and managers should "exercise caution if you use social media to discuss work issues while drunk."