As I’ve said before, it amazes me what people will put on their Facebook (and other social media) pages. Many users, particularly Gen-X’ers, Y’ers, and millienials (and my crazy teenagers), tend to think of Facebook as being a private conversation (with 500 of their dearest friends). Savvy employers should keep this in mind when faced with defending a (meritless) lawsuit brought by an employee. It is amazing what you can find on a Facebook page, as the employer learned to its delight in Mealus v. Nirvana Spring Water NY Inc.
An employee told her supervisor that she had accepted another job. The job offer was subsequently withdrawn, apparently because the employee had talked to others about what she would be making, which the new company viewed to be a breach of confidentiality. (I question whether the company’s “confidentiality” policy violates the right of employees to discuss their pay under the National Labor Relations Act, but that’s a whole other issue…). The employee ranted about this on her Facebook page. There was conflicting testimony about whether the employee then asked for her job back, but in the end, she had a verbal altercation at work and claims that she was “forced to quit.” That evening, she sent an email to the employer, claiming that she had been sexually harassed by the chairman of the Company’s Board of Directors (and brother of the CEO).
The employee then sued the employer, claiming that the sexual harassment made her physically ill, and that the harassment was the sole cause of her illness. But, as the employer pointed out when asking the court to dismiss her claims, within days after her resignation, the employee had posted on her Facebook page that her boyfriend’s ex-girlfriend “caused utter chaos in our lives and he let it happen and I was so upset that I got sick every day for 4 months.” Months later, she described her relationship with the then-ex-boyfriend as a “10-month nightmare.” The court found that these posts, as well as other evidence including the employee’s own emails, directly contradicted the claims and allegations in her complaint. The court then threw out her lawsuit.
So, the lesson for employers here is that an employee’s social media activity can contain incredibly helpful information for a defense, particularly since it’s in the employee’s own words. In the course of litigation, employers should always seek access to the employee’s social medial activity. But caution – if an employer wants to view an employee’s social media activity before a lawsuit is filed (like during an internal investigation into possible employee misconduct), there may be state laws that restrict access by an employer to private social media accounts. And you can’t get around those restrictions by asking another employee who is “friends” with the employee to access the private account. But hey – anything that is publicly available is fair game, and it is astounding how many people do not put privacy settings on their social media accounts!