Employer Called “Fowl” on Employee’s Intimidating Facebook Posts Directed at Coworker

An Arkansas federal court recently ruled that Tyson Foods, Inc. was within its rights to terminate an employee for directing intimidating Facebook posts to co-workers in violation of the Company’s directive not to contact her co-workers during an investigation. The Facebook posts appear to have been made outside of work hours and away from the Company’s premises.

The Company first disciplined the plaintiff after a video was posted on Facebook showing the plaintiff “shaking her tail” and placing money in the shirt of a male co-worker who was performing an “exotic” dance in the Company’s facility. The Company initially terminated the plaintiff, but she appealed the termination and her disciplinary action was reduced to a written warning with a suspension. The plaintiff then complained that her co-workers were mistreating her because she was reinstated. Tyson opened an investigation, and specifically instructed the plaintiff not to discuss the investigation with her co-workers or to have contact with any of the witnesses to the relevant events.

In the course of its investigation, Tyson learned that the plaintiff had made two intimidating Facebook posts directed at one of the plaintiff’s co-workers, who was a witness to the dancing incident that was captured on video. The posts were as follows:

“Bitch I got u tho. Bad built ass. get a life my daughter got u cause i will.”

@ This Bitch name Candie Im not your Murthafuckin friend an I think I said sumthing [4] to an at your Ass earlier. About looking on my page u dnt no anthing about me nor my husband. An first of ALL I can put whatever I want on my Damn page if u dnt like it when Delete your ass from my page. An first of All your Bitch ass keep looking in my Damn mouth every Lyme Im talking if Im not talking to you what the fuck u getting a mouth full of nothing. Just to let u know hater are my motivate. So since you think I talk to guys an calling it adultery. Bitch u dnt know anything about me but my first Name So u need to Think B4 u Speak. An go find your Babies Daddy an stop-fuckin your friend Man. With your bad bult ass with your back pocket touchin your knees as get u a Booty Pad So your pants stop falling. Now go tell that Bitch, So u will be Delte. An stop having one night stand with all your riders Suckin they Dick. U Brought this on your own.

Tyson suspended the plaintiff based on these posts on the grounds that she violated the Company’s direct instructions to neither discuss the investigation nor have contact with any of the witnesses or participants. Because it was her second suspension in 12 months, the Company terminated her employment.

The trial court granted Tyson’s summary judgment motion on the plaintiff’s claims for race discrimination, retaliation, and hostile work environment. With respect to the discrimination claim, the trial court found that the plaintiff could not demonstrate either that she was meeting Tyson’s legitimate job expectations or that there was a similarly situated employee who received more favorable treatment. The intimidating Facebook posts clearly established that plaintiff had violated the Company’s instruction to not discuss the investigation or contact witnesses. Further, the trial court rejected the plaintiff’s argument that a co-worker, who also had made inappropriate Facebook posts, was treated more favorably as the evidence showed that Tyson did not have any knowledge of this co-worker’s alleged actions at the time it made the determination to suspend the plaintiff.

Practical Pointers:

  • In the appropriate circumstances, an employer may discipline an employee for social media activity where that activity constitutes a violation of the employer’s policies or the employer’s express directions to the employee, even where such activity occurs outside of work hours and away from the employer’s premises.
  • Generally, an employer should investigate an employee’s social media posts that come to its attention and that may violate its policies, particularly its harassment policies. The Tyson holding suggests that an employer need not take affirmative steps thereafter to check into what each of its employees is posting on their social media accounts before making a determination as to the action to be taken with regard to one employee. Of course, employers should be aware that their investigation of employees’ social media accounts may implicate state laws restricting employers’ access to those accounts.
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