A lawsuit stemming from a company’s termination over off-duty conduct that went viral on social media is a reminder of the need to properly handle disciplinary actions.
The lawsuit also reflects the increasing trend employers’ are forced to respond to – reacting to social media incidents of employee conduct outside the workplace. It also reflects the risks employers face over terminating an employee for such issues. Below we offer suggestions for limiting these risks.
Remember Amy Cooper? She was the white dog owner who called the police on a Black man who was bird-watching in New York’s Central Park. She claimed he threatened her. But that was not true. Instead, a video of the incident showed she only called the cops after he politely asked her to leash her dog. As an aside, she’s lucky she was not charged for animal cruelty for the way she “handled” her poor puppy in the video.
Adjectives to describe Cooper’s actions could include vile, reprehensible, or despicable. But the District Attorney’s office simply called it a misdemeanor for falsely reporting an incident to police. Those charges were later dropped after she completed an alternative sentencing program.
Cooper’s employer, Franklin Templeton, fired her in response to the Central Park incident.
But Cooper’s retelling of this incident from her Complaint against Franklin Templeton returns to the story where she claims to be the actual victim of various villains conspiring against her to make her out to be a terrible, racist person. Here’s a sampling of that retelling:
- “On May 25, 2020, Plaintiff was confronted in Central Park by Christian Cooper while walking her dog alone. This confrontation became international news as a racial flashpoint, characterized as a privileged white female “Karen” caught on video verbally abusing an African American male with no possible reason other than the color of his skin.”
- “This characterization was created and nurtured, in whole or in part, by the public statements published by the Defendants …”
- “[Cooper] did these things because she was alone in the park and frightened to death after being selected as the next target of Christian Cooper, an overzealous birdwatcher…”
- It was Christian Cooper’s practice and intent to cause dog owners to be fearful for their safety and the safety of their dogs.
- Franklin Templeton only interviewed Cooper when she was “palpably distraught and fearful of her safety.”
- Through Twitter statements and interviews from the CEO, “Franklin Templeton perpetuated and legitimized the story of “Karen” vs. an innocent African American to its perceived advantage, with reckless disregard for the destruction of Plaintiff’s life in the process.
Cooper also asserts Franklin Templeton did not conduct an adequate investigation. Among the claimed shortcomings of the investigation, Franklin Templeton did not review the African American birdwatcher or any witnesses from the park. She also complained Franklin Templeton did not review her 911 call or meeting minutes from the New York City Park Board Meetings. These minutes are alleged to include incidents pre-dating her call to the police where Christian Cooper asked other dog-owners to leash their dogs (Not sure how the serial “please leash your dog” Black Guy defense helps here or justifies Cooper’s 911 call to the police but that’s just me).
According to Cooper the cumulative effect of her former employer’s response “convey[ed] that Franklin Templeton had performed a thorough and fair investigation, and that the result of the investigation concluded that Plaintiff was a racist and that is why Franklin Templeton fired her.”
Cooper also alleged Franklin Templeton discriminated against her based on race and sex because she wouldn’t have been “targeted” if not for being a White woman.
Suits like Cooper pose real problems for employers.
We’ve successfully defended companies and managers over frivolous or questionable claims on par with those against Franklin Templeton. But that success comes at a cost, including in some instances days of trial waiting for a jury to return a verdict. And cases like Cooper’s show that even where employers have a legal reason to terminate, they can often be sued for how the termination is carried out or, at least, find an attorney to pursue such theories.
Here are a few takeaways and recommendations from or experience for limiting your legal risks:
- Generally, an employer’s reasonable investigation won’t be second-guessed by judges, including whether it was was ‘fair’ or not. In Michigan, this is called the “business judgment rule.” Even so, employers should prepare this defense by adequately documenting the facts for or against disciplining an employee.
- Investigations and decisions for or against discipline should be applied consistently across the workforce; Be prepared to explain and support any deviations from past disciplinary action.
- Less is more. If your company terminates an employee, decide whether it is worth commenting on it. If it is, the response should be carefully crafted, be limited to the facts, and come from a designated company representative who is also the point-person for follow-up.
- The reasons for disciplining an employee should be “job-related.” If the offending action occurs during non-working hours, employers should be prepared to show the offending conduct adversely affects the employer’s business or violates its written policies.
- As to employer social media policies, careful consideration should go into drafting them. Balancing three considerations should be reflected in your policies: (i) Protecting the company’s reputation and business interests; (ii) Not unnecessarily expending resources policing the workforce; and (iii) Not alienating good employees with an overzealous policy of policing off-duty conduct.
For employees, you should assume, except for narrow exceptions, that social media or off-duty conduct is not a bar for your employer to discipline you. Just ask the insurrectionists who lost their jobs after attacking the Capital on January 6.
Use this link to contact Michigan attorney Jason Shinn if you have questions about this article or complying with Michigan or federal employment laws. Since 2001, Mr. Shinn has represented companies and individuals concerning the issues discussed above and other employment matters under federal and Michigan employment laws.