This case is noteworthy for the same reason that "Man Bites Dog" stories make news. Examples of employees, insurance claimants, cheating spouses, and the like being busted by their Facebook posts are so common nowadays as to be cliche. The case of Rodriguez v. Wal-Mart Stores, Inc. (N.D. Tex., Jan. 9, 2013) begins with the same fact pattern. But where it ends up is the exact opposite of what you might expect.
On July 6, 2010, Virginia Rodriguez--a supervisor at Sam's Club--found the Facebook pages of some of her subordinates. They showed the employees "at a July 4 party, despite the fact that those individuals had called in sick on that day." As you'd expect, Rodriguez busted their chops.
The trouble is, she chose to do so on Facebook. Specifically, she "posted information on [one of the employee's] Facebook page[s] publicly chastising [them] by name for falsifying reasons for their work absence." That employee reported the incident to HR, which promptly disciplined Rodriguez for "publicly chastising employees under her supervision, rather than waiting for the associates to return to work to discuss her attendance concerns." This was a direct violation of the company's Social Media Policy, which provides in pertinent part:
[Y]ou are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid doing so in a way that is unprofessional, insulting, embarrassing, untrue, [or] harmful . . . .
As it turns out, Rodriguez had already been disciplined for another, unrelated violation of company policy. So this offense resulted in her termination. She sued, but the court found her violation of the Social Media Policy to be a "legitimate, nondiscriminatory reason for [the] decision to terminate [her.]"
There's no indication in the court's opinion, by the way, of what, if anything, was ever done to the employees who called in sick.
What are the takeaways here? First, it's a reminder to employees at all levels that Social Media Policies apply to everyone within a company. Second, employers should be reminded that it's not just the entry-level employees they should be concerned about; even the most sophisticated white-collar workers can slip up and express themselves online in an unprofessional manner. And third, this case suggests that policy language like the passage at issue here--which is wisely designed to prevent supervisors from fanning the flames of a dispute online--is enforceable and worthy of consideration when drafting your own policies.
