A previous post on this blog discussed ways for employers to increase the effectiveness of a company’s social media policy (See The Sweet-spot for Increasing the Effectiveness of a Social Media Policy: Employee Self-Interest).
One of the real-world examples discussed in that post was a lawsuit against a former Michigan Assistant Attorney General Andrew Shirvell that arose out of Mr. Shirvell’s use of social media. As explained below, on August 16, 2012, a jury returned a verdict in this case (it did not turn out well for Mr. Shirvell).
Specifically, Andrew Shirvell was fired as a Michigan assistant attorney general, mocked (quite brilliantly) on the Daily Show, and eventually sued in federal court for using social media (blogging) to chronicle his obsession over a former student body president at the University of Michigan, Chris Armstrong.
Mr. Armstrong is openly gay and Mr. Shirvell, a self-described “right-wing guy,” started the “Chris Armstrong Watch” blog. On his blog, Mr. Shirvell repeatedly blogged about Mr. Armstrong, including post that he was promoting a “radical homosexual agenda” and referring to Mr. Armstrong as a “gay Nazi.”
While almost no one (thankfully) would sympathize with a Nazi – gay or otherwise – a jury felt equally unsympathetic toward Mr. Shirvell and his actions; On August 16, 2012, a jury returned a verdict against Mr. Shirvell in the amount of $4.5 million in the lawsuit filed by Mr. Armstrong.
Employer and Employee Liability for Social Media Misconduct
For both employers and individual employees, this jury’s $4.5 million verdict is a stark reminder that social media continues to expand the liability for both and there are real-life consequences if it is misused.
While the lawsuit against Mr. Shirvell did not involve his former employer (he was, however, fired in response to his social media escapades), employers should still take notice that they need to be prepared to take appropriate action if they learn that an employee may be inappropriately using social media, including against a co-worker.
On this point, case law is not always consistent when it comes to when and under what circumstances an employer may be liable for an employee’s social media misconduct, but such liability increasingly happens.
For example, Jon Hyman provides an excellent discussion of a lawsuit arising out of employees who started an anonymous blog that focused in a very offensive and derogatory manner on a co-worker, Ralph Espinoza. See 820,000 Reasons to Have a Social Media Policy. After Mr. Espinoza learned of the blog, he complained to management, who did little other than asking employees to put the blog to rest, but it continued for approximately eight weeks. A jury awarded Espinoza $820,000 for the harassment.
Take-Aways – Employee Social Media Misconduct is Still Misconduct
From a practical perspective, it is unrealistic for employers to monitor all possible social media to detect potential derogatory or defamatory postings by employees.
But if the employer does become aware (i.e. the offended employee complains to management a co-employee posted something discriminatory or offensive or a competitor, client, or customer makes a similar complaint about a potentially offensive post), the employer must treat potential social media related misconduct like any other investigation into employee misconduct.
It is important, however, that such social media related investigations are conducted in collaboration with experienced legal counsel because of the conflicting obligations and policy considerations that employers must balance.
For more information about the challenges employers face when it comes to balancing social media employment related risks, see The Intersection of Social Media & Employment Law: The Good, the Bad, and the Confusing (which includes a link to presentation materials). And for additional information about conducting employment investigations or other employment law issues, contact Jason M. Shinn.