“Don’t @ Me”: Tips to Help Employers Avoid Liability in the Social Media Age

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Julie Su v. Bevins & Son, Inc. (U.S. District Court for the District of Vermont, 2024)

A recent case provides lessons for employers in navigating legal complaints during and after their resolution. The employee in this case, Riley Bockus, successfully won a back-pay settlement against their employer, Bevins & Son, Inc. After the employee won the settlement, the employee alleged that their former employer had engaged in retaliatory behavior by using social media to publicly criticize the employee.

The employer had posted the following on Facebook, in addition to other replies regarding the employee: “To anyone who saw and watched the WCAX news cast on our business. All we are going to say is please google the disgruntled employee whom was fired and contributed to the story Riley Bockus (his word and character will be seen). That’s not the whole story & that’s not what the findings were. WCAX did NOT and has not reached out to us in regards to the ******** story they just aired. Lawyers are involved… All that know Bevins & Sons knows what kind of business we run and what we stand for! Thank you for supporting us….We are still hiring [emoji] & ALWAYS do your do diligence when hiring someone.”

In response to the employer’s subsequent behavior, the employee filed a lawsuit for retaliation. Retaliation occurs when an employer takes adverse action against an employee for engaging in a protected activity, such as filing a legal complaint. The resulting legal issue was based around the employer’s reaction to the employee’s legal victory in those social media posts referencing the employee, and whether it amounted to unlawful retaliation. These actions were alleged as attempts to publicly shame the employee and deter other employees from asserting their legal rights.

One can see how the employer in this case might think they were just defending their reputation against a news report. However, the U.S. District Court for the District of Vermont subsequently ruled in favor of the employee regarding his retaliation claim. The court found that while employers have free speech rights, they do not have the right to use their social media platforms or other public forums to publicly shame or retaliate against employees for exercising their legal rights. The court emphasized that free speech protections under the First Amendment do not give employers carte blanche to engage in actions that could possibly discourage employees from exercising their labor law rights.

With the above case in mind, here are some practical tips to help employers avoid compounding such situations and trouble online.

Consult Legal Counsel: Whenever an employer is uncertain about how to respond to an employee’s legal claims or complaints, MNK Law is here to help. If an employer is unsure about liability or certain possible actions, it is best to consult with legal counsel to ensure compliance with relevant labor laws and prevent unintended retaliation.

Maintain Clear Policies: Employers should have clear, written policies outlining their anti-retaliation stance. Employers should also maintain clear policies on how employees can safely report concerns without fear of retribution. Employers should have clear policies in place regarding how to handle legal disputes or complaints.

Ensure Adequate Training for Leadership: Employers should train managers and HR personnel to recognize and avoid retaliatory actions such as those described in this case. Managers should be equipped with the knowledge of what constitutes lawful behavior when interacting with employees involved in legal disputes or complaints. Employers should implement anti-retaliation training and foster a culture of respect and fairness in all interactions with employees, both during and after legal proceedings.

Monitor The Company’s Social Media Presence: With the ever-increasing role of social media in today’s world, employers must be especially cautious about their online presence. If an employer maintains a corporate social media account, policies should be in place to ensure that it is always used appropriately. Social media can amplify retaliation, and as shown in this case, lead to further damages for the employer, in a situation that should have been already resolved. Employers should tread carefully when discussing employee-related matters, online or offline. Comments such as those in the example case could not only damage an employer’s reputation but also expose the Employer to liability.

Internal Conflict Resolution: When an employee files a complaint, or wins a legal case, the company should focus on resolving the matter amicably throughout the process. Employers should avoid resorting to negative statements or punitive actions, as that will rarely ever help to resolve the dispute or improve the employer’s position in the legal matter.

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