Erecting a Legal Defense Through Social Media

I hope you had a very happy holiday season and New Year. Both seem to be distant memories at this point. Many of the upcoming posts in 2017 will undoubtedly address, and be impacted by, the nature of the new Trump administration and the extent to which the primary (federal) government agencies will begin to retreat a bit from the aggressive positions taken over the past eight years. But some things just may not change.

We continue to see significant growth in the use of live feeds, video feeds, selfies, and generally the use of social media in the workplace. Not even the “traditional” workplaces: Pittsburgh Steelers wide receiver Antonio Brown set off a three rivers firestorm late Sunday night when he provided a live feed into the Steelers’ post-game locker room celebration while his head coach was giving a fiery speech that might have been different if he had known that the outside world was watching and listening.

Finding the most satisfying balance between permissible and impermissible use of social media in the workplace is often very hard. On the one hand, you can’t generally have a bare policy that prohibits any and all picture taking in the work place. On the other hand, employees’ rights may be left exposed with an effort to use pictures and videos to build a defense to a potential claim. Take, for example, the recent case of Furcron v. Mail Centers Plus (11th Circuit) in which the company allegedly fired a mailroom clerk for taking a picture (and showing the picture to others) of a co-worker’s crotch, in order to “document” alleged sexual harassment because of the co-worker’s “constant erection.”

Can’t make this stuff up.

The co-worker has Asperger’s Syndrome, which, according to the court decision, often results in the individual exhibiting “mannerisms that are generally considered awkward and inappropriate, including staring, brushing up against employees, and talking in people’s faces.” In turn, the clerk observed that her co-worker “frequently (‘on a daily basis’) exhibited an erect penis while staring at her. More significantly, she said [her co-worker] would deliberately bump and rub his erection against her.” After the clerk took the picture of her co-worker and brought it to the attention of her superiors and others, the company ultimately expressed the following as the reason for terminating her employment:

“Taking sexually suggestive pictures of a male associate’s private area without his permission or knowledge. Stored them in her camera and displayed the picture to other associates….”

The federal court of appeals for the 11th Circuit addressed, among other issues, the clerk’s retaliation claim against the company. Specifically, the court found that the clerk was not merely attempting to use pictures to document improprieties she witnessed in the workplace. Rather, the company was able to defeat the retaliation claim by proving that she was not fired in retaliation for complaining about harassment, and instead that her taking and showing photos of her co-worker’s crotch was itself a violation of the company’s separate, lawful anti-harassment policy.

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

There are currently lawful reasons for employees to use social media in the workplace, such as to attempt to collectively memorialize certain union-related activities. But your company can still regulate social media use that clearly violates a lawful workplace policy, such as one that prohibits the disclosure of trade secrets or one that prohibits harassment or discrimination. The key is to make sure your written policies are narrowly-tailored and precise, enforced consistently, and do not leave your employees hanging when it comes to knowing what is and what is not permissible conduct.

About The Author

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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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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