"An employer's free speech right to comment upon matters that affect the business is firmly established," noted a Vermont federal judge earlier this month. "But when such commentary is a threat of retaliation ... it is without the protection of the First Amendment."
That's fancy speak for employers can't use social media to retaliate against employees, current or former.
The case involves an employee who believed he was shorted overtime in his paycheck and texted his boss that he would go to the "labor board." Wouldn't you know it? The employee got fired and promptly complained to the U.S. Department of Labor's DOL's Wage and Hour Division. So WHD investigates, and the employer ends up settling by agreeing to pay back wages to SEVENTEEN employees, plus punitive damages.
After the settlement, the DOL issued a press release, and the local news ran with the story. Notably, neither one named the original complainant.
So, the employer posted on Facebook, "All we are going to say is please google the disgruntled employee whom [sic] was fired and contributed to the story [Name of Employee] (his word and character will be seen)."
Many people commented, including one that included a screenshot of a Google search showing that the employee had engaged in criminal activity, to which the employer commented, "point made." The employer liked other comments about the employee's criminal activity.
Once the DOL learned about this, it sued for retaliation under the Fair Labor Standards Act because the employee had clearly engaged in a protected activity by complaining to WHD. The DOL alleged that the Facebook posts were related adverse actions.
But, the employer was all like, "Freedom of speech, Your Honor!"
Indeed, the Supreme Court has recognized that the First Amendment protects an employer's right to make specific predictions about the effects of unionization on the business and broadcast its general views on unionization.
(Guilty!)
But that speech cannot contain a threat of reprisal or force or promise of benefit. Therefore, "employer statements designed to punish or otherwise unlawfully influence employees are generally not subject to First Amendment protection." Similarly, the FLSA does not protect speech that chills employees from complaining about pay practices under the FLSA.
The Facebook posts did just that by encouraging others to reinforce the complainant's criminality, thus further sullying his reputation as "disgruntled" and making it harder for him to obtain future employment.
Were the employer's Facebook posts true and accurate? Who cares? The employer designed them to retaliate against the complainant.
Threat of retaliation > First Amendment rights.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.