A court decision this month from down in Fort Worth, Texas
provides a great reminder for those keeping score of all of the
NLRB's Facebook firing cases.
In Sumien v. CareFlite, a few ambulance
technicians and other employees of a Texas-based company posted
comments on each other's Facebook wall that responded to
one's expressed desire to slap a patient that had been
transported by ambulance. Plaintiff participated in the discussion,
posting: "Yeah, like a boot to the head . . . Seriously yeah
restraints or actual HELP from PD instead of the norm." The
company's compliance officer saw (and was offended by) the
comments, and reported them to management.
Plaintiff and another posting employee were terminated, and
Plaintiff brought a lawsuit alleging three common law state claims,
including a claim for "unwarranted intrusion upon
seclusion". Interestingly, all of the claims were based on
Texas common law, as opposed to statute-based claims under federal
or state law. The initial court dismissed the intrusion upon
seclusion claim, and Plaintiff appealed.
The appellate court agreed with the dismissal, and
ruled that Plaintiff did not state a viable claim for intrusion
upon seclusion, which required a showing of: "(1) an
intentional intrusion, physical or otherwise, upon another's
solitude, seclusion, or private affairs or concerns that (2) would
be highly offensive to a reasonable person."The appellate
court rejected all of Plaintiff's arguments, noting
particularly that no one at the company engaged in any act that
invaded Plaintiff's "private affairs or concerns."The
appellate court also quickly rejected Plaintiff's argument that
he did not realize how many "friends" of his co-worker
would be able to view his wall post:
"While [Plaintiff] presented evidence showing that he
misunderstood [the co-worker's] Facebook settings, did not know
who had access to [the co-worker's] 'wall', and did not
know how CareFlite was able to view his comment, he did not present
any evidence to show that his misunderstanding meant that CareFlite
intentionally intruded upon his seclusion."
In other words, nice try.
Employer Take Away: What should you as an employer take away
from this development?
Most commentaries on the "Facebook firing" issue have
focused on the avalanche of opinions, guidance and decisions
rolling out of the NLRB's office as part of its application of
the federal right to engage in "protected concerted
activity". However, as the CareFlite case shows, employees may
also raise state-law claims (even non-statutory, as in that case)
to address adverse action taken because of social media
The decision in CareFlite was not favorable for that employee,
but the particular facts and elements of the state claim in your
jurisdiction may be. So, while considering the NLRB implications we
have previously discussed before making the employment-based
decision, it would be wise for your company to also consider
potential exposure from other non-NLRB sources.
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