Facebook and Suicidal Thoughts

A federal court in Seattle, Washington issued a decision last week in Rebecca Peer v. F5 Networks, Inc. that offers an interesting example of the impact that social media can have on the employer-employee interactive process in the disability arena.

F5 Networks is a multinational networking appliances company that employed Peer since early 2010 as a Technical Support Coordinator.  Shortly after she started, Peer began experiencing chronic pain and depression, for which she asked (and received) a work accommodation that included a reduced work schedule.  On July 1, 2010, Peer was medically cleared to return to a 40-hour workweek.  However, later that month, she sent a message to her manager on Facebook that stated in part: 

“I start crying the instant my alarm goes off in the morning and don’t stop until I finally get to sleep at night.  All I do all day at work for the past week is dream up practical ways to kill myself that won’t require the people I love to clean up the mess. . . .”

Peer also posted a note on her own profile page that said:  “[W]ork feels like a war zone.  I have some serious PTSD.  Walked in the building and automatically started puking this morning.”

Peer met with company management, during which questions arose about how truthful she had been with her own doctor, and whether she was capable of returning to work, particularly in light of her Facebook statements concerning her suicidal thoughts.   The company advised her that she would not be allowed back to work unless and until her doctor certified that her return would not pose a direct threat to her health or safety.  

After some additional back and forth surrounding Peer’s failure to provide certain updated documentation, and a suggestion that her own doctor was questioning the company’s request for additional information, Peer’s employment was terminated.   Peer sued her employer, and the court ultimately denied both parties’ application for summary judgment on their respective positions.  As to the company’s request, the court ruled that it could not dismiss Peer’s disability discrimination and failure to accommodate claims as a matter of law, but rather a jury should decide whether the company properly ended the interactive process and Peer’s employment.

Employer Take Away:   What should you as an employer take away from this development?   

The Peer case involved, in the disability context, the double-edged sword that exists when an employer obtains information through social media.   In certain circumstances, an employer can assert a “direct threat” defense to liability under disability laws by affirmatively proving that the employee could not perform the essential functions of her job because she posed a direct threat to herself or to others.   In this case, F5 Networks believed that Peer’s Facebook postings revealed suicidal thoughts (thus, a direct threat to herself) that was not medically negated by her physician.

Although F5’s summary judgment motion was denied, that does not mean that the company will not ultimately prevail in this case.   But, even at this procedural juncture, the case offers a few valuable lessons to your company:

            (1)        Consider whether you want to promote or dissuade supervisors from “friending” subordinates to avoid learning information that you might not otherwise have learned.

            (2)        Understand that, once you do learn certain information through social media, such as employee statements about health conditions or indications that an accommodation is needed, you must still act on that information and address it as seriously as if the statements were given to the company in person or in a written letter.

            (3)        Your company’s front line supervisors and managers should be trained on the appropriate actions to be taken once information is obtained that may trigger your company’s duty to engage in an interactive process with one of your employees.

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About Social Media Employment Law Blog
Social Media Employment Law Blog is devoted to the interplay between social media and employment law, an extremely topical and significant area of law for employers in this new technology era. Published and edited by Michael Schmidt, Vice Chair of the Labor & Employment Department, Mike concentrates in representing management in all facets of employment law and has been frequently quoted on employment law topics, and is regularly interviewed by trade publications and national journals for his opinions on legal trends.
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