Employee’s Dishonesty Outweighs Employee’s Complaints of Harassment in Termination/Retaliation Suit

A hospital employee was terminated for dishonesty and causing a workplace disruption. She had previously posted comments on her Facebook page alleging that her supervising physician inappropriately touched her and was paying employees for time they did not work. The accused physician saw the posts and notified hospital management. The employee was asked about the posts, and three times denied that she had authored the posts. The hospital investigated the allegations, including the allegations concerning the touchings by the supervisor, and during this time, the employee told her co-workers that she believed the physician had destroyed evidence of the extra pay he had given to the employees. Later, the employee admitted that she had, in fact, authored the Facebook posts and was terminated for dishonesty and causing a workplace disruption. More ›

Employee’s Facebook Venting not Protected Speech

A police officer had a Facebook page which was set to "private," but was viewable to any of her numerous Facebook "friends," who could then potentially distribute material on her page more broadly. On her page, she had posted a comment criticizing an investigator in her department. The department had a work rule requiring that any criticism of a fellow officer be directed through official department channels, and should not be used to to the disadvantage of the reputation or operation of the department or employees. More ›

New Jersey Federal Court Finds that SCA Exception Applies to Facebook Posting Shared by Co-Employee

In the case of Ehling v. Monmouth-Ocean Hospital Service Corp., Civ. No. 2:11-cv-03305 (WJM) (D. N.J. Aug. 20, 2013), a federal district court in New Jersey granted an employer's motion for summary judgment, and thereby dismissed the employee's claims of violations of the federal Stored Communications Act, (SCA"), the Family Medical Leave Act, and other claims the employee made under New Jersey law alleging discrimination, invasion of privacy, and protected "whistle blowing" activity. We will focus today on the court's analysis and application of the SCA to the sharing of screen shots from the employee's Facebook postings. Before reaching that discussion, however, the court first had to review the relevant facts.  More ›

Private Facebook Message not Concerted Activity Under NLRA

In this case, an employer terminated a medical office worker based upon a private Facebook message she sent to nine other current and former employees. The message contained derogatory comments about the employer but focused on one supervisor and another returning supervisor she disliked. The employee also expressed a desire to be terminated. No one copied on the message responded directly to the message content at issue. Another employee who received the message gave it to the employer. The employer terminated the author of the message on the grounds that it was obvious the employee no longer wished to work there and disliked the employer and, given these feelings, the employer was concerned about the employee’s interactions with patients.  More ›

Employee’s Facebook Pictures Reflecting Conduct Inconsistent with FMLA Leave Supports Employer’s Termination Decision

Recently, the United States Court of Appeals for the Sixth Circuit held that an employer did not retaliate against an employee who had taken intermittent leave nor did it interfere with her rights under the Family and Medical Leave Act (FMLA) when it fired the employee for fraud. More ›

NLRB: Auto Dealership did not Violate Labor Law when it Fired Employee for Posting Facebook Photos of Accident at Sales Event

In a decision made public yesterday, the National Labor Relations Board determined that a car dealership employee who was terminated for posting mocking photos on Facebook of a serious accident at its "Ultimate Driving Event" was not engaged in concerted activity, and that his termination. therefore, did not violate the National Labor Relations Act. The decision in Knauz Motors, Inc. d/b/a Knauz BMW, Case 13-CA-046452 (Sep. 28, 2012), is not all good news for employers, however, as the Board suggested that other photos posted by the employee, which mocked the food at the sales event — but which no other employee commented on or joined in — constituted protected activity because they related to earlier complaints from the sales team regarding the food. More ›

State Claims for Wrongful Discharge Related to Facebook post not Preempted by Federal Law

A nurse posted complaints about high patient-to-nurse ratios at the hospital where she worked on her Facebook page, and asserted that the high ratio negatively impacted patient safety. The nurse was subsequently warned that she should think about her behavior because her actions—whether at work or at home — reflected on the hospital. Fearing termination, the nurse deleted the Facebook page. Five months later, the nurse was terminated for substandard customer service. She sued the employer in Kentucky state court, alleging that she was fired in retaliation for exercising her free-speech rights under the Kentucky Constitution. The hospital sought to remove the lawsuit to federal court on the basis that the nurse’s complaint involved claims for violations of federal law, including the National Labor Relations Act (NLRA), and that those federal laws preempted her complaint. The U.S. District Court for the Eastern District of Kentucky found that the nurse’s claim was firmly rooted in Kentucky state law and that neither the NLRA nor the Labor Management Relations Act preempted the claim. Accordingly, the case was remanded to the state court. Employers should be mindful that an employee’s public complaints about working conditions on social media networks may be protected by various state law protections that vary depending on the state of employment, which could in turn support a claim for wrongful discharge. Consequently, it is important to fully evaluate not only applicable federal laws when making an adverse employment decision, but also applicable state and local laws that may offer additional protections to an employee.

Moore v. Highlands Hosp. Corp., No. 7:11-cv-131 (E.D. Ky. Nov. 17, 2011)