Contributed by Michael Wong
One of the biggest issues for employers is how much the internet and social media can be used to find information posted by or about employees. However, how many employers consider their own social media footprint and who is contributing to it? While an employer may be cognizant of what it posts on the internet, it should also be concerned about what managers and supervisors are posting on the internet and social media (Facebook, LinkedIn, MySpace, Google+, blogs, etc.).
As what has generally come to be recognized as the “Cat’s Paw” theory, the actions of a supervisor, even one who is not a decision maker, could be conveyed upon an employer to support the imposition of liability. Staub v. Proctor Hospital, 131 S.Ct. at 1193. As explained in Staub, because a supervisor is an agent of the employer, when he or she causes an adverse employment action the employer causes it; and when discrimination is a motivating factor in the supervisor doing so, it is a motivating factor in the employer’s action. 131 S.Ct. at 1193.
Under the Cat’s Paw theory it is possible that an employer could be subjected to liability based on its owners’, directors’, managers’ and supervisors’ personal use of social media, including Facebook. This became even more evident when the District Court for the Middle District of Tennessee held that posts on a company blog, posts on a manager’s personal Facebook page (even when removed) and a manager’s verbal comments, were sufficient evidence to create a genuine dispute of facts concerning one employee’s retaliation claim and another employee’s constructive discharge retaliation claim in a FLSA class case. Stewart v. CUS Nashville, LLC, 3:11-CV-0342, 2013 WL 456482 (M.D. Tenn. Feb. 6, 2013).
In Stewart, the court found that a blog entry on the company’s website by its founder and president that “referenced a lawsuit initiated by someone who had been previously terminated for theft and contained the following statement directed to that individual: ‘Fu** that b*tch’” was sufficient evidence to allow a jury to find retaliation in violation of the FLSA. The court went on to find that the company’s Director of Operation’s post on Facebook, while intoxicated, stating “Dear God, please don’t let me kill the girl that is suing me . . . that is all . . .” and similar verbal comments while the employee was present, were sufficient evidence to allow a jury to find the employee was constructively discharged in retaliation for joining the FLSA lawsuit. While the court did not find the evidence was enough to grant either party summary judgment, the use of social media lead to the employer being faced with the uncertainty of liability and costs of a trial.
Bottom line: Employers must be aware that they could be held liable not only for what they post on the internet, but what their directors, managers and supervisors post on the internet.