It’s always a good idea to avoid business disputes on Facebook, or any social media site for that matter. A good mantra, “Don’t post anything online that you wouldn’t want the Department of Labor to see.”
In this interesting case, a Vermont employer posted grievances about a former worker, and they are now having to go to court. The case is Su v. Bevins & Son, Inc., Case No. 2:23-cv-560.
An employee worked for Bevins & Son, a Vermont construction business. In 2022, the company allegedly failed to pay said employee for overtime. He confronted his employer and threatened to call the labor board if Bevins & Son didn’t pay him. The employee was promptly fired later that day and thus, a complaint was filed with the U.S. Department of Labor (DOL).
Following the investigation, Bevins & Son settled with the DOL, and the company had to pay back wages to 17 employees, plus the disgruntled former employee. The DOL soon distributed a press release that was picked up by a local TV news station. It should be noted that neither the DOL press release nor the news segment mentioned names of the employees benefiting from the settlement.
This is where things get thorny. Bevins & Son’s secretary and treasurer decided to go to Facebook. She posted, “To anyone who watched the news cast, all we are going to say is please google the disgruntled employee whom was fired.” She then posted the employee’s name and said, “Google him to see his character.”
Well, to no one’s surprise several people responded including comments alleging the former employee had a criminal record. To make matters worse, employees of Bevins & Son “liked” several of the comments.
The DOL filed a complaint against Bevins & Son, alleging the secretary’s Facebook post was an unlawful retaliation. Bevins & Son filed a motion to dismiss. It should be noted The Fair Labor Standards Act (FLSA) makes it unlawful for an employer to discriminate against an employee for engaging in protected activities, to include filing a complaint.
There was no dispute the employee participated in a protected activity when he filed his DOL complaint. The question is, “Can a negative Facebook post be an employment action disadvantaging the employee when the post is true?” Bevins & Son argued its retaliatory Facebook post was protected by the First Amendment.
The Vermont district court rejected the argument, concluding the Facebook post was a disadvantageous action for a couple of reasons. First, the post publicly disclosed the employee’s identity, which neither the DOL press release or the TV news story disclosed. Second, the post did more than identify the employee. It invited readers to discover his criminal past, which had no relevance to the settlement or the news story.
Simply put, Bevin & Son’s angry Facebook post called negative attention to the employee by highlighting his criminal record, potentially damaging his reputation. The court concluded this qualified as adverse employment action.
The court also rejected the Facebook post was protected stating, “The First Amendment does not protect speech that is retaliatory under the FLSA. The fact that retaliation comes in the form of speech does not entitle it to special protection.”
The court denied Bevins & Son’s motion to dismiss and so, the case moves forward. The company will now have to pay litigation fees because of a Facebook post. Best practice? Train employees to never post anything in social media that you would not want the Department of Labor to see. As seen by the litigation above, it could cost you.
The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.