Attractive Women! Retaliation Claims! Social Media! Mixed Drinks! In a Wage-Hour Case?

Ok… I admit to sounding like a British tabloid writer.  However, how often can one discuss a Fair Labor Standards Act (FLSA) case set in an upscale bar,  involving allegations of retaliation and threatening social media posts?  I suspect that wage-hour lawyers dream of such cases.

Thanks to my friend and esteemed lawyer/blogger, Eric Meyer and his post on this recent case:

 Manager’s drunk Facebook threats + Boss’s Buddha blogging = retaliation claim?

You should read Eric’s Blog entry, but one immediate lesson is not to Blog about current or ex-employees who sue or make other claims against the employer. 

Allegedly, a supervisor posted the following deeply philosophical musing on a frequently viewed Facebook page:

Wednesday, May 11, 2011

“By the way Lil, you should be getting served with a lawsuit. No worries just sign for it”. This particular case will end up pissing me off cause it is coming from someone we terminated for theft. I have to believe in my heart that somewhere down the road, bad people end up facing bad circumstances!
I have been reading the basics of Buddhism and am going to a class on Monday. The Buddhist way would be to find beauty in the situation and release anger knowing that peace will come. Obviously , I am still a very new Buddhist cause my thoughts are ” f ***(author revisions) that bi***”. Let me do my breathing exercises and see if any of my thoughts change. Lol

The complaining employee subsequently claimed that the individual’s posted status then seemed like a threat to her.  The following status may look to you like a foolish snarky comment, and not a real threat.  However, when one makes such a statement, one should consider the law of unintended consequences… such as a retaliation claim! 

     Dear God, please don’t let me kill the girl who is suing me.  That’s all.

The plaintiffs haven’t won yet, and may well lose.  However, in February, the Federal Court dismissed the employer’s Summary Judgment Motion.  My read of the situation?  the employer may win because of various legal arguments, but the behavior was enough to get past summary judgment and to a jury.  In lawyer-speak, “this is not good.”  Well, it is good from a standpoint of someone earning fees, but I suspect that both the defense counsel and the employer would prefer to have this embarrassing matter done with.

Lessons Learned…

1.     An employer can NEVER remind employees too many times that they must be prudent about what they e-mail or post at work and at home.

2.     As I have emphasized in my frequent Blogs about OSHA Retaliation Claims, Workplace Violence, Threatening Employees and other concerns, retaliation and whistleblower claims are exploding.  Make sure that supervisors are aware of the many types of protected workplace conduct.

3.     Use this opportunity to remind supervisors to never discipline or counsel employees in anger or in a knee-jerk fashion.  Tell them to pause, think through the facts and consider the employee’s personality, past history, and other factors… and then act.

4.     before you fire an employee for such electronic behavior or set out broad new social media rules, review the current state of the law, including the NLRB’s positions.

5.     What’s my favorite closing admonition?  Never assume that this stuff could not occur in your workplace.

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
This entry was posted in discipline and discharge, EEOC, employer policies, government inspections, hospitality, social media, wage hour, whistleblower/retaliation, workplace violence and tagged , , , , , . Bookmark the permalink.

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