#No Filter: Terminating an Worker for Social Media Posts – Half 4

Before the advent of social media, employers were generally comfortable drawing a clear line between what employees did in their free time and wrongdoing in the workplace. However, those bygone days have been replaced by a modern era when employers are forced to apply labor laws that were created before the personal computer to their employees in an increasingly virtual world. The COVD-19 pandemic has only accelerated the transition to a more virtual workplace. In this high-profile edition of #No Filter, we examine sample cases involving two customer service representatives and their private employers’ decisions to take disciplinary action after offensive social media posts posted off-duty on their personal devices.

Rhonda Patterson-Eachus v United Airlines, Inc., No. 19-CV-01375-MEH, 2020 WL 7260742 (D. Colo. Dec. 9, 2020)

The plaintiff worked for United Airlines in various functions for 31 years, most recently as airport operator. In her spare time, privately and with her own computer, she posted a link on her private Facebook page asking for assistance in maintaining Weld Central High, her high school’s rebel mascot, including a cartoon on a Confederate flag . She also posted a video saying that the Confederate flag “is not the evil that many people say is”. The plaintiff’s Facebook friends also included other United employees, including those she supervised. United received at least one anonymous complaint, and one of the plaintiff’s colleagues informed them that the posts insulted one of the African-American customer service agents the plaintiff was overseeing. The plaintiff removed the posts and notified the human resources department of the removal. After an internal investigation that showed examples of the behavior of other employees who felt “attacked or harassed” by the plaintiff, her employment relationship was terminated and she filed a complaint for gender and age discrimination under Title VII of the Civil Rights Act and violation of the legal provisions of Colorado has an off-duty statute.[1]

Regarding the claims of gender and age discrimination, the court found that the plaintiff had met her initial prima facie burden for these claims due to her “correct record for over thirty years”. It was “ended without the accused exercising advanced discipline” and her immediate supervisor was banned from participating in the investigation. However, the court also found that United had established a legitimate, non-discriminatory reason for her termination based on conduct that violated employee standards of conduct. In particular, United justified its departure from progressive discipline on the grounds that (1) their behavior “has irreparably damaged their ability to lead their subordinates,” (2) their behavioral guidelines expressly dismissed them for “harassing United employees for any reason.” ” allow. and (3) there was no comparable evidence of previous inconsistent treatment (ie, no evidence that employees in a similar position engaged in similar conduct who were not terminated for violating these guidelines). Accordingly, the court issued a summary judgment in United’s favor with respect to plaintiff’s claims of discrimination based on gender and age.

Colorado’s Law on Lawful Off-Duty Activities provides:[i]It is a discriminatory or unfair employment practice for an employer to terminate an employee’s contract because that employee is doing a lawful job outside of the employer’s premises outside of working hours … ”In rejecting United’s motion for a summary judgment on that state In a claim, the court found that Colorado law was “intended to provide protection for employees who engage in activities that are personally unpleasant to their employer, but whose activities are legal and unrelated to an employee’s job duties.” ; see also Marsh v. Delta Air Lines, Inc., 952 F. Supp. 1458, 1462 (D. Kolo. 1997).

Koslosky v. At the. Airlines, Inc., 456 F. Supp. 3d 681 (ED Pa. 2020)

The plaintiff worked for American Airlines as a customer service representative for thirty years. In September 2017, she published two Facebook posts that “contained inflammatory and racially insensitive feelings” that went viral and sparked a “firestorm” of complaints from employees and customers. After an internal investigation found the posts “perceived as racist”, she was dismissed for violating employer’s guidelines on social media, passenger services and the work environment. The plaintiff filed a lawsuit of gender discrimination and disability and retaliation under Title VII of the Civil Rights Act and the Americans with Disabilities Act.

In support of its claims, the plaintiff pointed to a customer service manager who made inflammatory Facebook comments about then-President Trump and was not disciplined. The court found that this comparator was not “set up similarly in all respects”.[2] because these posts were “political in nature” and an objective reader would view the plaintiff’s posts as “racist” because they discussed people’s personal characteristics and belonging to protected classes. While both had the potential to cause a stir, they weren’t the same. ”Accordingly, the court upheld American’s motion for a summary judgment in full and dismissed the case.[3]

Practical advice for employers

These cases illustrate the importance of the consistent application of disciplinary measures (and the comparators they create) in defending against labor disputes. The United case also shows the importance of considering state law in social media disciplinary cases, especially for employers with a national geographic presence. California, Colorado, Louisiana, New York, and North Dakota have state laws prohibiting employers from engaging in adverse employment measures based on legitimate off-duty activity, such as speech. However, these off duty laws are still relatively rare in the fifty states.

Employers considering disciplinary action for social media misconduct outside of work should ask themselves a few basic questions before taking action:

1. Do I have a copy of the tweet or post?

Social media is user-controlled content and can easily be deleted if an employee learns that they are being investigated. Preserving this evidence before action is taken is critical to any full investigation.

2. Does the job relate to working conditions or wages?

The National Labor Relations Act prohibits employers from taking action against workers who act collectively to improve their wages, hours, and / or terms of employment.

3. Would the post be considered harassment if said face to face?

In order to apply an employer’s harassment and discrimination policy to abusive behavior, it is necessary to assess the content and context of the speech. Constantly assessing abusive behavior and taking action to correct it, regardless of the location of the behavior, will help ensure consistent application of the employer’s policies and assist the defendant against subsequent litigation.

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