With so many employees now posting on social media—both at work and after work—employers must consider what to do if an employee complains online about workplace harassment. Recently, the U.S. Supreme Court provided some guidance by declining to review a Tenth Circuit decision that touched on this issue.
In Debord v. Mercy Health System of Kansas, Inc., the employee, a nuclear-medicine technician at a hospital, made a series of public Facebook posts during one of her shifts. Some of these posts claimed that her supervisor had intentionally overpaid employees that he favored, and that he “needs to keep his creapy (sic) hands to himself . . . just an all-around d-bag!!” The supervisor saw the posts and reported the employee’s comments to HR. The employer started an investigation into the matter, but soon afterwards terminated the employee for lying on three occasions about making the posts and also interfering with the investigation by sending texts to other employees.
In her lawsuit, the employee claimed that she was sexually harassed and retaliated against for reporting such harassment on Facebook (which she alleged was protected speech). In affirming summary judgment for the employer on both claims, the Tenth Circuit ruled that the Facebook post did not constitute a legally protected harassment complaint because it did not comply with the employer’s harassment reporting policies and did not provide any notice to the employer. In any event, there no pretext existed as the employee was not fired for posting on Facebook, but for dishonesty and disrupting the employer’s investigation.
- Employers should be pleased that the Tenth Circuit enforced the hospital’s policies for reporting harassment and found that the Facebook post did not meet the reporting requirements. At the same time, once employers learn about any complaints of harassment—whether through normal channels or via social media—they must treat them like any other workplace issue and conduct a thorough investigation, as the hospital did in the Debord case. (This case also is a helpful reminder for employers to ensure their policies make clear that employees are obligated to report harassment and explain specifically how to do so.)
- As we have cautioned before, employers should take into account and follow recently enacted laws in many states that prohibit employers from requesting or requiring employees to provide access to their personal social media accounts.