EDITOR'S NOTE: This is the second of a two-part series on social media and the law. Part I reviewed decisions from the National Labor Relations Board pertaining to social media. Part II focuses on court decisions.

In recent years, social media issues have proliferated in federal and state employment law litigation, ranging from the discharge of an employee for violation of a social media policy to the scope of permissible discovery into a discrimination plaintiff's social media accounts. The following is a summary of some of the more interesting court decisions from the past two years.

Fired for Facebooking?

In Rodriguez v. Wal-Mart Stores, Inc., the U.S. Court of Appeals for the Fifth Circuit (which hears appeals from federal courts in Louisiana, Mississippi, and Texas) held that the violation of a social media policy was a legitimate, nondiscriminatory reason for the termination of a manager in an age and national origin discrimination case brought under the Texas Labor Code.

Ms. Rodriguez was a former Operations Manager of a Sam's Club store. Nine months after receiving a final warning for admittedly reducing the cost of an item she planned to purchase, she violated the Wal-Mart social media policy — which also applied to Sam's employees — by posting on Facebook about two cashiers who had called in sick on the day of a party hosted by a co-worker. After the co-worker posted pictures of the party on Facebook, Ms. Rodriguez commented, "I hear that Caleb didn't show up for work on this day what's up with that??? He is partying with you guys?? WOW . . . you guys are amazing and bold enough to post these . . ."

Although Wal-Mart's policy allowed employees to post complaints online, employees were prohibited from posting anything that was "unprofessional, insulting, embarrassing, untrue, [or] harmful." The company determined that Ms. Rodriguez's comment violated the policy, and because of her disciplinary history and prior final warning, her employment was terminated. Ms. Rodriguez sued for age and national origin discrimination, but Wal-Mart won summary judgment. Ms. Rodriguez then appealed to the Fifth Circuit.

The Fifth Circuit found that the company's reasons for discharging Ms. Rodriguez — her two violations within a one-year period — were legitimate, nondiscriminatory reasons for the termination decision. Ms. Rodriguez did not challenge the validity of Wal-Mart's social media policy — perhaps because even the NLRB had found Wal-Mart's policy to be valid – and the court did not address that issue. Thus, Rodriguez leaves open the question of whether a court might find summary judgment inappropriate if a plaintiff successfully challenged an employer's social media policy or if a court on its own determined that the policy was invalid or overbroad.

What about unemployment?

Another question is whether the violation of a social media policy will disqualify an employee from receiving unemployment benefits. The answer may vary, depending on the jurisdiction, but a New York appellate court recently held that a one-time violation of a social media policy did not constitute disqualifying "misconduct" under New York law.

In Sullivan v. Brookville Ctr. for Children's Servs., Inc., the discharged employee admitted to posting on social media once while at work, in violation of the company's policy against posting on social media "during work hours, unless for specific and approved business purposes." The court concluded that the single post was "an isolated incident" and noted that the employee "had a clean disciplinary record prior to her termination." The court therefore upheld the decision of the New York Unemployment Insurance Appeal Board that the employee's conduct, "while reflective of a momentary lapse in judgment, did not rise to the level of disqualifying misconduct."

Fishing into Facebook posts: How much is too much?

Another hot topic in recent federal employment cases is whether, and to what extent, an employer may get a plaintiff's social media postings during discovery. In Smith v. Hillshire Brands, a Title VII and Family and Medical Leave Act case in which the plaintiff sought to recover for emotional distress, a federal court in Kansas considered the employer's motion to compel production of documents responsive to the following two requests:

Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement [plaintiff] made on or through any social networking website . . . that references or mentions in any way [defendant] and/or the matters referenced in [the] [c]omplaint

Request No. 18: Electronic copies of [the plaintiff's] complete profile on Facebook, MySpace, and Twitter (including all updates, changes, or modifications to [plaintiff's] profile and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, and comments for the period from January 1, 2013 to present.

Because Mr. Smith had not objected to Request No. 15, the court ordered him to produce all responsive documents or a sworn statement that he had none other than the limited amount that he had already produced.

With respect to Request No. 18, although Mr. Smith had likewise not objected initially, he "objected" in his opposition to the defendants' motion to compel. Specifically, he objected on privacy and relevancy grounds, saying that the request would require him to produce "highly personal data" that did not relate to his employment or the allegations in his lawsuit. The court agreed that the request was overbroad because it sought "documentation of all of the plaintiff's activity on the named social networks since January 1, 2013, regardless of whether the activity has anything at all to do with this case or the allegations made in [the] complaint." The company was "cast[ing] too wide a net," the court said, and compelling Mr. Smith to respond would "sanction an inquiry into scores of quasi-personal information that would be irrelevant and non-discoverable."

The court then reviewed other federal decisions that had considered the proper scope of discovery into a plaintiff's social media accounts and decided to follow what it called the "intermediate approach." It allowed the company to discover "not the contents of plaintiff's entire social media activity, but any content that reveals plaintiff's emotions or mental state or content that could reasonably be expected to produce in plaintiff a significant emotion or mental state." The court reasoned that this approach would "permit defendant to discover information relevant to plaintiff's emotional state, which he has put at issue, while protecting from a fishing expedition into every thought he reduced to writing on the internet since January 1, 2013." Therefore, the court compelled Mr. Smith to produce only social media postings in that time frame that included "references to his emotional state and references to potential causes of that emotional state."

Social media posts block plaintiff's ability to amend complaint?

"Be careful what you post." A Texas federal court recently applied this adage and also gave employers another tool to challenge eleventh-hour motions from employment plaintiffs seeking to amend their complaints to add new claims. In Miller v. Team Go Figure, L.L.P., a Fair Labor Standards Act case seeking unpaid overtime, the three plaintiffs sought to add a retaliation claim seven months after the deadline to amend pleadings and after the parties had already filed cross-motions for summary judgment.

The plaintiffs based their purported new retaliation claim on online harassment approximately seven months earlier by the company's office manager and her husband, who had allegedly (1) targeted one of the plaintiffs with unwanted telephone calls, (2) sent that plaintiff's personal information to others without her knowledge or permission, and (3) posted false Craigslist advertisements under that plaintiff's name. The plaintiffs claimed that they had been unaware that the manager and her husband were behind the Craigslist advertisements until only a few days earlier, after Craigslist had responded to a subpoena.

The court denied the plaintiffs' request to amend. Among other reasons, the court cited Facebook posts by one plaintiff from approximately seven months earlier, speculating that the office manager and her husband were responsible for the online harassment. Thus, the court said, the plaintiffs "could have followed up on the matter sooner and sought to add a retaliation claim sooner."


So far, the courts appear to be more tolerant than the NLRB of employer social media policies and restrictions, and employers have been successful in using employees' own social media postings in the employers' defense. However, this is a rapidly evolving area of the law, and so employers should continue to monitor decisions from the courts and the NLRB. (As noted by Dan Murphy in Part I of this series, the NLRB rules apply to non-union as well as union employers.)

Employers also should keep the following points in mind and confer with counsel as appropriate:

  • Enforce lawful social media policies (and all other company policies) consistently when relying upon them as a ground for disciplinary action.
  • Do not assume that discharge for violation of a social media policy necessarily disqualifies a former employee from receiving unemployment benefits. The standard for recovery of unemployment benefits varies by jurisdiction, but it is generally more lenient toward employees than the standards that would apply in most employment litigation. Employers should consult with counsel about the law of the states in which they do business.
  • When litigation arises, consider limiting discovery requests for an employment plaintiff's social media postings to those that are reasonably related to the plaintiff's allegations in the lawsuit. If the employee seeks emotional distress damages, that may open the door for you to request more information.

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