F5 Networks is a multinational networking appliances company
that employed Peer since early 2010 as a Technical Support
Coordinator. Shortly after she started, Peer began
experiencing chronic pain and depression, for which she asked (and
received) a work accommodation that included a reduced work
schedule. On July 1, 2010, Peer was medically cleared to
return to a 40-hour workweek. However, later that month, she
sent a message to her manager on Facebook that stated in
"I start crying the instant my alarm goes off in the
morning and don't stop until I finally get to sleep at
night. All I do all day at work for the past week is dream up
practical ways to kill myself that won't require the people I
love to clean up the mess. . . ."
Peer also posted a note on her own profile page that said:
"[W]ork feels like a war zone. I have some serious
PTSD. Walked in the building and automatically started puking
Peer met with company management, during which questions arose
about how truthful she had been with her own doctor, and whether
she was capable of returning to work, particularly in light of her
Facebook statements concerning her suicidal thoughts.
The company advised her that she would not be allowed back to work
unless and until her doctor certified that her return would not
pose a direct threat to her health or safety.
After some additional back and forth surrounding Peer's
failure to provide certain updated documentation, and a suggestion
that her own doctor was questioning the company's request for
additional information, Peer's employment was
terminated. Peer sued her employer, and the court
ultimately denied both parties' application for summary
judgment on their respective positions. As to the
company's request, the court ruled that it could not dismiss
Peer's disability discrimination and failure to accommodate
claims as a matter of law, but rather a jury should decide whether
the company properly ended the interactive process and Peer's
Employer Take Away: What should you
as an employer take away from this
The Peer case involved, in the disability context, the
double-edged sword that exists when an employer obtains information
through social media. In certain circumstances, an
employer can assert a "direct threat" defense to
liability under disability laws by affirmatively proving that the
employee could not perform the essential functions of her job
because she posed a direct threat to herself or to
others. In this case, F5 Networks believed that
Peer's Facebook postings revealed suicidal thoughts (thus, a
direct threat to herself) that was not medically negated by her
Although F5's summary judgment motion was denied, that does
not mean that the company will not ultimately prevail in this
case. But, even at this procedural juncture, the case
offers a few valuable lessons to your company:
Consider whether you want to promote or dissuade supervisors
from "friending" subordinates to avoid learning
information that you might not otherwise have learned.
Understand that, once you do learn certain information
through social media, such as employee statements about health
conditions or indications that an accommodation is needed, you
must still act on that information and address it as
seriously as if the statements were given to the company in person
or in a written letter.
Your company's front line supervisors and managers should
be trained on the appropriate actions to be taken once information
is obtained that may trigger your company's duty to engage in
an interactive process with one of your employees.
This week, the U.S. Supreme Court issued a potentially landmark ruling in Spokeo, Inc. v. Robins (No. 13-3339), a case filed under the Fair Credit Reporting Act of 1970 (the "FCRA") but expected to have much wider implications, including for Telephone Consumer Protection Act ("TCPA") lawsuits.
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