In 2012 I had an article published in the National Law Review regarding social media and workplace harassment claims. In the article I discussed the different approaches courts take to whether they consider social media activity to be within the workplace or beyond the doors of the work site. For hostile work environment claims, it often matters whether activity is part of the work environment or outside activity related to the workplace relationships. We are still seeing different approaches by the courts. We may never hear a single voice from the courts on that issue.
However, today’s post isn’t about whether social media can create an employment claim but how it can ruin an existing claim. I have written in the past about this danger in employment cases (as well as other lawsuits, such as divorces) but a recent case out of Arkansas shows just how much social media can ruin your employment.
Social media in employment lawsuits
In Brown v. Tyson Foods, Inc., social media killed the plaintiff’s career as well as her subsequent lawsuit. Here are the facts according to the court’s summary judgment opinion. Brown was a black employee of Tyson Foods (who has several tightly-monitored operations in Arkansas). Plaintiff Brown was initially suspended after a video, posted on Facebook, became known to Tyson management that showed Brown “shaking her tail” and stuffing money in the shirt of a male co-worker while he performed his own saucy dance. This dance off occurred at a Tyson facility. Tyson decided the conduct violated the company’s harassment policy and fired her. She appealed to a manager and reinstated with a suspension.
Roughly a month later she complained to HR that she was being mistreated and called names related to her race and the race of people with whom she associates. In the course of the HR investigation a co-worker disclosed two Facebook posts directed towards this co-worker that came from Plaintiff’s Facebook account. The two comments suggested some hostility and veiled threats. “Bitch I got u tho. Bad built ass.” And so forth. Plaintiff claimed her daughter wrote the posts and the daughter confirmed them. But Plaintiff did not tell Tyson that her daughter had penned the posts.
Following this nonsense, Brown then posted an “intimidating post” directed at another witness in the investigation. Brown had been told not to discuss the investigation. Tyson suspended Brown a second time for discussing the investigation. Under Tyson’s policy, two suspensions in a twelve month period resulted in termination. Brown in turn argued that white employees had engaged in the same behavior and had tried to provoke her and they had not been punished, although she had not known about the white employee’s posts at the time she made her own hostile post.
How social media can ruin your wrongful termination, employment discrimination, FMLA, or other employment lawsuit
The result: Plaintiff lost her job and lost her lawsuit. The reason why is obvious. Her conduct, both in the saucy dancing and hostile social media posts fell short of legitimate job expectations. (The court had some other reasons to dispense some of her other claims.) Even as a sympathetic plaintiff’s attorney, there’s not much defense for her conduct. Even if mistreated in regard to her race, she didn’t do herself any favors broadcasting her conflict to the public. The naughty dance at work doesn’t help.
Sure, most people are not going to involve themselves in such outlandish behavior but this case offers some important reminders for employees about how social media can sink a career:
- Anything you do can end up on video and uploaded to the internet where social media can spread it at an alarming pace. The Rodney King case in the early 1990s foreshadowed the significance that access to consumer camcorders would have on capturing people at their worst moments. Now, the opportunity for the inconvenient video is almost constant. A smartphone offers easy opportunity for covert video recording. Uploading those videos to social media is as easy as it gets.
- You cannot control social media. Once you post something to social media, it’s out there. You can’t control how fast or where it spreads. Even if you delete your own posts you will never know how who has screen shots or print outs. Plus, the social media websites retain copies of that information, even when they say they do not.
- Flaming people is a terrible idea. Making nasty and threatening content permanent and semi-publicly available is an excellent way to make yourself look like an awful human being. Even if you think somebody has a “[b]ad built ass.”
- Don’t let other people have access to your social media accounts. You can’t control what goes on in your account unless you control access to your account. It may not matter that you can prove somebody else posted to your account, especially if you leave the content third parties add to your account hang around for others to see.