Employee’s use of social media in the workplace continues to be a land of eggshells on which employers may walk. However, The United States Supreme Court recently refused to review a Tenth Circuit decision granting summary judgment to an employer and in doing so allowed for the wisdom of that court to stand as guidance to other jurisdictions. In Debord v. Mercy Health System of Kansas, Inc., an employee made several posts about her direct supervisor on Facebook by claiming he adds extra money to employee’s paychecks for un-worked hours if he likes them and saying that “he needs to keep his creapy [sic] hands to himself… just an all around d-bag!!”
Debord’s direct supervisor saw her posts on Facebook and immediately brought the issue to Human Resources. The human resources director confronted Debord about the posts and on multiple occasions she denied posting them. She stated that anyone could access her Facebook account from her cell phone and that she left the phone unattended at times throughout the day. After denying making the posts three times, she then admitted to making the posts. When Debord finally confessed she was suspended for one day without pay for “[f]ail[ing] to conduct [herself] in a manner consistent with a high degree of personal integrity and professionalism.”
The human resources director then specifically asked Debord about the “creepy hands” comment and stated that this comment concerned him greatly. Debord stated that her supervisor would touch her and a lot of the women in the department to show them how cold his hands were. The human resources director asked if Debord thought this was sexual harassment and she denied thinking so. Regardless, Mercy’s risk manager investigated for any potential of sexual harassment.
During the investigation, Mercy’s risk manager interviewed Debord. Debord denied making a sexual harassment complaint and declined when she was asked if she wanted to file a formal complaint. Another female employee was interviewed and she denied any inappropriate conduct by the supervisor.
The supervisor was also investigated for overpaying certain employees, but this allegation was determined to be false. Despite the human resources director informing Debord that he had all evidence that would show if overpayments were made, Debord still sent text messages to other employees accusing her supervisor of destroying such evidence. Finally, Debord was terminated for disruption, inappropriate behavior, and dishonesty. At this point Debord filed suit against her former employer for sex discrimination and retaliation.
The court granted summary judgment against Debord as Debord’s Facebook comments did not qualify as a legally protected complaint because they did not comply with the employer’s flexible system for reporting sexual harassment and the Facebook posts failed to provide notice to the employer. Finally, the court noted, Debord was not terminated for her Facebook posts, but rather because of her dishonesty and disruption of the workplace.
While this case is a win for employers, social media is still a slippery topic in the employment context. The best way to reduce your risks of claims is to review your social media policy often and with the assistance of employment counsel, as this area of the law continues to change rapidly.
If you have any questions regarding social media in the workplace, please contact any of the attorneys at Royal LLP at (413) 586-2288.