The growing influence of technology on labor and employment law has given IT-Lex many opportunities to demystify the obfuscation surrounding these issues. The latest chapter in this saga recently came from the Fifth Circuit in Rodriquez v. Wal-Mart Stores, Inc. This case was mostly decided based on employment law issues but highlights how important it is for employers and employees to stay abreast of their duties with respect to online conduct
Virginia C. Rodriquez was dismissed from her job at Sam’s Club, a Wal-Mart subsidiary, after she violated company policy by posting the following comment to a photo that a friend had posted to Facebook:
I hear that Caleb didn’t show up for work on this day what’s up with that???? He is partying with you guys?? WOW and Carrie tried to call in for him and knew about this . . . you guys are amazing and bold enough to post these [pictures] hahahahaha.
The friend complained to management and Rodriquez was found to have violated Wal-Mart’s Social Media Policy. Rodriquez admitted the facts that formed the basis of her Social Media Policy violation. This policy mandates, among other things, that online comments cannot appear “unprofessional, insulting, embarrassing, untrue, [or] harmful.” Rodriquez filed suit against her former employer based on age and national origin discrimination, and retaliation under the Texas Commission on Human Rights.
The district court granted summary judgment in favor of Wal-Mart and the Fifth Circuit affirmed. The court found that Rodriquez had properly shifted the burden of showing that the dismissal was of a nondiscriminatory nature to Wal-Mart by establishing a prima facie case for discrimination. More significantly, the Court then reasoned that Wal-Mart had met this burden, as it showed that there were no motivating factors for the dismissal other than the social media policy violation.
As at least one commentator has suggested, this case highlights the need for companies to implement an effective social media policy. If (as Rodriquez did in the instant case) an employee admits facts that are found to violate a company’s lawful social media policy, then the company has gone a long way to protecting itself from liability for suit. Employees should also be aware of these policies and attempt to align their online presence with the policy’s requirements.
What constitutes an effective and legal social media policy? Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board (NLRB), offered one answer in a memo released by the NLRB. This memo was the third in a series of reports on social media and federal labor relations law. The report discussed seven cases that the NLRB had brought against employers for unlawful social media policies. All of the policies were found in violation except for the seventh. This seventh policy was established by none other than the nation’s largest private employer, Wal-Mart. Although Rodriquez was in violation of a previous iteration of the policy, this new policy seems even more effective than the last.
Social Media policies are here to stay. Employees, employers, and job-seekers now have yet another concern to occupy their mind.
