A court decision this month from down in Fort Worth, Texas provides a great reminder for those keeping score of all of the NLRB’s Facebook firing cases.
In Sumien v. CareFlite, a few ambulance technicians and other employees of a Texas-based company posted comments on each other’s Facebook wall that responded to one’s expressed desire to slap a patient that had been transported by ambulance. Plaintiff participated in the discussion, posting: “Yeah, like a boot to the head . . . Seriously yeah restraints or actual HELP from PD instead of the norm.” The company’s compliance officer saw (and was offended by) the comments, and reported them to management.
Plaintiff and another posting employee were terminated, and Plaintiff brought a lawsuit alleging three common law state claims, including a claim for “unwarranted intrusion upon seclusion”. Interestingly, all of the claims were based on Texas common law, as opposed to statute-based claims under federal or state law. The initial court dismissed the intrusion upon seclusion claim, and Plaintiff appealed.
The appellate court agreed with the dismissal, and ruled that Plaintiff did not state a viable claim for intrusion upon seclusion, which required a showing of: “(1) an intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, or private affairs or concerns that (2) would be highly offensive to a reasonable person.” The appellate court rejected all of Plaintiff’s arguments, noting particularly that no one at the company engaged in any act that invaded Plaintiff’s “private affairs or concerns.” The appellate court also quickly rejected Plaintiff’s argument that he did not realize how many “friends” of his co-worker would be able to view his wall post:
“While [Plaintiff] presented evidence showing that he misunderstood [the co-worker’s] Facebook settings, did not know who had access to [the co-worker’s] ‘wall’, and did not know how CareFlite was able to view his comment, he did not present any evidence to show that his misunderstanding meant that CareFlite intentionally intruded upon his seclusion.”
In other words, nice try.
Employer Take Away: What should you as an employer take away from this development?
Most commentaries on the “Facebook firing” issue have focused on the avalanche of opinions, guidance and decisions rolling out of the NLRB’s office as part of its application of the federal right to engage in “protected concerted activity”. However, as the CareFlite case shows, employees may also raise state-law claims (even non-statutory, as in that case) to address adverse action taken because of social media activity.
The decision in CareFlite was not favorable for that employee, but the particular facts and elements of the state claim in your jurisdiction may be. So, while considering the NLRB implications we have previously discussed before making the employment-based decision, it would be wise for your company to also consider potential exposure from other non-NLRB sources.
Michael C. Schmidt is the vice chair of the firm’s Labor & Employment Department, and the office managing partner, vice chair, of the New York Midtown office, where he is resident. For more than two decades, Mike has concentrated his practice on representing companies and management in all facets of employment law, such as: (i) defense in litigation involving wage and hour (overtime and unpaid compensation), discrimination, harassment, retaliation and whistle-blowing, non-competes and trade secrets, and disability and other leave-related issues; (ii) day-to-day counseling and in-house training on issues from hiring to firing, and other questions unique to his client’s industries and business; and (iii) drafting and reviewing employment agreements, termination and severance agreements, confidentiality and non-competes, and employment policies and manuals.
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