A recent case out of Washington State (we represent California employees and are a statewide California employee-side law firm) highlights the problem for both employees and employers when social media, such as Facebook, is used to post comments about the workplace or the posters’ own personal health issues. In this newly-reported case, an employee at a high-tech firm in Seattle utilized her Facebook account to publicize her depression and possible suicidal threats. She claimed depression was due to work. When the company found out about this posting, they called her in, instructed her to get a note from her doctor that she did not pose a danger to herself or others, and if she couldn’t or wouldn’t do that, she would be out of a job. This of course could lead to a lawsuit for the termination in violation of public policy or other torts and statutory wrongs.
So, where’s the conflict here? The employee could sue for breach of her workplace privacy rights (why was the employer looking at her Facebook page?) and (depending on how the employer reacts) failure to accommodate her disability and/or not offering her Family Medical Leave Time or other company-provided leave such as PTO (paid time off), sick leave or vacation. First, of course, an employee must exhaust their administrative remedies with the proper state agency, such as the Department of Fair Employment and Housing here in California. Many employees also go to the relevant federal agency, the Equal Employment Opportunity Commission.
What learning lessons from this social media situation? As an employee, set your privacy rights as high as you can and consider two and even three times whether this is the type of information you even want to post. Remember that potential new employers routinely assign HR reps to find out all they can about you. Mostly, they want to see if you are speaking badly of your current or immediate-past employer under the assumption that they will see their name on your page eventually. (All employment has a life-cycle). As an employer, do you really want to “know” medical conditions that an employee is not obligated to share with you in the workplace? If an employer has access to and it is reasonable to assume they have acted with knowledge of your “posted” condition, then they risk subjecting themselves to a lawsuit for failure to accommodate, dialog, and/or discrimination. Remember that many lawsuits are based on the employer’s belief that a protected condition exists, whether or not it actually is a confirmed diagnosis.
Numerous causes of action (legal theories) can come out of a posting that comes to your employer’s attention. Tweet and post carefully out there!