Much of the focus lately has been on the NLRB filing complaints in various jurisdictions over alleged “Facebook firings”. So far, those proceedings have been resolved without a hearing or decision. Just last week, however, a Court in Florida did issue a decision.
In Lilli Morse v. JP Morgan Chase & Co., the plaintiff alleged that her employer retaliated against her when it fired her after she complained on her Facebook page about a failure to pay overtime wages. The company moved to dismiss the complaint before answering, arguing, among other things, that a “Facebook posting lacks the hallmarks of a serious complaint to an employer.”
You will remember that the Supreme Court recently ruled in Kasten v. Saint-Gobain that, while an oral complaint may constitute a “filed” complaint within the meaning of the Fair Labor Standards Act (“FLSA”), the filing still must evidence “some degree of formality,” and not merely a “triviality” or that the employee was “just letting off steam.” The Florida Court in Morse dismissed the retaliation claim, finding that the plaintiff “never complained to her employer at all,” but rather “simply voiced her disagreement with her employer’s payment practices on her Facebook page. This ‘letting off steam’ falls far short of the activity protected by [the FLSA].”
Employer Take Away: What should you as an employer take away from this development?
At the outset, the NLRB’s “concerted activity” angle was not at issue in this Florida case, so the employer there cannot say it is completely out of the woods yet. And it is not at all clear where the facts in this case will fall on the spectrum that ultimately gets developed. For example, another judge might find that a question over the seriousness of the posting is one for a jury, rather than one susceptible to dismissal at the pleading stage as a matter of law. And what if the Facebook post was directed to (or viewed by) a supervisor who is a Facebook “friend”? What if the posting more expressly indicated a desire to put the employer on notice of the need for an investigation?
This case is the latest example of the application of social media (Facebook posts) to traditional, existing claims (FLSA retaliation). While the defendant in this case was successful at the initial stage, as an employer you need to understand the importance of sufficiently looking into the nature and circumstances of the social media post before pulling a quick trigger of an adverse employment decision. It would also be wise to consider whether the substantive allegations in the post is one worth investigating, once your company is put on notice.
Have a safe and happy 4th of July weekend.
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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