Social media: Are courts being more understanding?
For a while, it seemed like no company could win a social media lawsuit. Have the tides turned?
Molly DiBianca on the Delaware Employment Law Blog recently highlighted two social media cases where employers triumphed:
Took complaint to Facebook first
Maria Gresham, who worked for the police department for the city of Atlanta, posted something on Facebook criticizing a fellow officer’s involvement in an arrest that Gresham had made.
Though Gresham had set her Facebook page to “private,” the department found out and began an investigation.
The reason: The city had a policy which required employees to take criticism of fellow officers through official channels and not “be used to the disadvantage of the reputation or operation of the Department or any employees.”
As a result of the investigation, Gresham wasn’t allowed to apply for internal promotions with the department. So she sued, claiming retaliation.
A district court noted that the city rightfully had an interest in maintaining discipline and order which outweighed Gresham’s concerns.
On appeal, the court looked closer into whether Grisham’s post caused a disruption or if the city just thought that it might.
The court again sided with the city, saying the government has a legitimate interest in avoiding disruption and doesn’t need to wait until a disruption occurs to take action, as it did in Grisham’s case.
Though this decision only applies to public employers, DiBianca made a salient point regarding policies that require staff to take complaints only through official channels:
Does this policy really work? Do employees go through “official channels” every time they want to gripe about a co-worker. If my employees were lined up outside my door to file petty complaints about who took whose sandwich from the shared refrigerator, I would surely run for the door.
The case is Gresham v. City of Atlanta.
Mother/son issues led to mistake, but is company liable?
In the second case, Lawrence Smizer was fired from his job as a teacher’s aide at the Community Mennonite Early Learning Center. Smizer’s mother ran the daycare center.
That fact is crucial to the case because a family quarrel involving custody of Smizer’s teenage nephew had been brewing for several years before he was fired. The nephew wasn’t living at home, and Smizer had supported his sister’s effort to regain custody of her son. Smizer’s mother opposed that outcome.
A state judge eventually awarded custody to the boy’s mother. Smizer then allegedly posted the following on Facebook:
Lawrence Dontyoujudgeme Smizer To all my family that fought my sister tooth and nail over some B——T (And you know who you are) F–K YOU B—–S!!!! HE IS GOING HOME WHERE HE BELONGS!!!!!
HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAAHAHHAHAH HAAH
Smizer’s mother complained to the chairman of the Center’s board of directors saying she no longer felt safe in Smizer’s presence — and asked that he be fired for “creating a hostile work environment” and for “pulling staff into this family drama.”
Smizer was then fired ”for insubordination and unprofessional conduct,” though the chairman told Smizer that “the Facebook posting” was the basis for his dismissal.
So Smizer sued, claiming he didn’t write the post — and noted that the company couldn’t produce a copy of it. Instead, Smizer said, he was terminated for gender discrimination.
Therefore, the court asked the question: Did the daycare center reasonably believe Smizer had made that comment when it fired him? The court determined company officials did and therefore wasn’t liable for his mistaken termination.
As DiBianca noted:
The law … permits employers to make honest mistakes. An employer who makes the decision to terminate an employee based on an honest, but mistaken belief that the employee violated the employer’s policy, is not a basis for liability… so long as the termination is not based on unlawfully discriminatory reasons, no liability will attach.
The case is Smizer v. Community Mennonite Early Learning Center.
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