Social media has forever changed how the world communicates. While many have cited the positive consequences of social media, employment law attorneys are discovering that a simple Facebook post can turn into a costly mistake.
The latest social media blunder occurred in an age discrimination case out of Florida, Patrick Snay v. Gulliver Schools, Inc. and School Management Systems, Inc., 2011 Jury Verdicts LEXIS 214313. When Gulliver Schools did not renew the employment contract of Headmaster Snay, Snay responded by filing age discrimination and retaliation claims. On November 3, 2011, the parties reached a settlement agreement, which included a confidentiality clause. Gulliver agreed to pay $10,000 in back pay to Snay; $80,000 to Snay as a "1099"; and $60,000 to Snay's attorneys. The confidentiality provision required that the existence and terms of the agreement between Snay and the school be kept strictly confidential. If Snay or his wife breached the confidentiality provision, a portion of the settlement proceeds would be disgorged.
Days later, Snay’s college-aged daughter, posted to Facebook, “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.” Snay sought to enforce the settlement agreement. Judge Lopez of the Florida Circuit Court for Miami-Dade County concluded that Snay's disclosure of the settlement terms to his daughter and his daughter's Facebook post did not constitute a breach of the confidentiality agreement.
On appeal, the Florida Court of Appeal reversed, finding that Snay violated the non-disclosure clause. Judge Wells reasoned that the non-disclosure clause plainly, unambiguously prohibited Snay and his wife from either directly or indirectly disclosing any information regarding the existence or the terms of the settlement agreement. The daughter’s Facebook comments went out to approximately 1200 of her Facebook friends, many of whom were either current or past Gulliver students. Therefore, $80,000 of the settlement was disgorged.
In another case involving a costly Facebook post, Deputy Chief Rex Duke alleged freedom of speech retaliation against his employer after he posted a picture of a confederate flag on his personal Facebook page. Duke, who had worked for the Clayton State University Police Department for eight years, posted the picture along with the comment, “It’s time for the second revolution.” The Facebook comment was made right after the 2012 Presidential election. The department reduced Duke’s pay and demoted him. Duke later voluntarily resigned. The United States District Court for the Northern District of Georgia dismissed Duke’s case, finding that the Confederate flag and Duke’s comments about a revolution could have communicated an array of messages, including controversial, divisive, and prejudicial points of view. See 2014 Jury Verdicts LEXIS 1471 Judge Story explained that Duke’s speech was capable of impeding the ability of the department to perform its duties effectively. Thus, the department’s interests outweighed Duke’s interest in speaking.
Employers must also take care when drafting their social media policies. Ashley Kasarjian, in her article, The Social Media Checklist for Companies: What Your Clients Should Do, Know, and Learn, 49 AZ Attorney 16 (March 2013), provides some specific guidance. Kasarjian writes, “You can guarantee that employees will share their gripes and struggles on Twitter, Facebook, YouTube, Instagram, and any other site with friends or strangers who will listen.” Kasarjian cautions employers that some of these complaints could be protected activity under the NLRA, even for non-unionized employers.
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