In Debord v. Mercy Health Care System, No. 12-3072 (10th Cir., November 26, 2013), an employee, Sara Debord, complained about her male supervisor’s “creepy hands” and other conduct in her Facebook posts.  Several of her co-workers saw the posts and soon the posts came to the attention of her supervisor, who confronted Debord about the posts in the presence of a human resources employee.  Even though the employee advised HR that she did not want to lodge a sexual harassment complaint, HR investigated anyway. Ultimately, HR concluded that the supervisor had not violated the company’s policies.

By actively investigating and not waiting until a formal complaint was made, the employer was able to successfully demonstrate to the Court that it had  

  • An effective Anti-Harassment and Discrimination Policy
  • An effective means for employees to make Complaints that was flexible and adaptable to the circumstances
  • A well-trained staff that understood the importance of a prompt and thorough investigation

By acting immediately, before any potential adverse employment action could be taken by a supervisor, the employer was found not liable for any harassing conduct.

Interestingly, the employer fired Debord just one week after it learned of the Facebook posts.  Because Debord initially denied making the posts, fabricating a story that her cell phone could have been accessed to make the posts without her knowledge, her employer reprimanded her for unprofessional conduct.  In the investigation, the employer learned that the employee also made false claims that the supervisor overpaid her, ostentatiously to keep her quiet.  Debord shared these allegations with her co-workers disrupting the workplace and creating tension and distrust among the staff, supervisors and HR.  As a result, it terminated Debord’s employment.  The Court, reviewing these facts, rejected Debord’s retaliation claims finding her employer had a legitimate reason for the discharge.

Important Take-Aways for the Attorneys Representing Employers

It is important to act upon knowledge, however received. Gone are the days, if they ever existed, that an employer could wait until receiving “official notice.”  The risk of not acting when important information is received, albeit from a non-traditional source, is that as an employer you will be charged with such knowledge, especially when it becomes “common knowledge” in the workplace.  

Does your Social Media Policy Need to be Updated?

Given the potential issues that social media may cause in the workplace, an employer may wish to consider adopting, or revising, its social media policy to include:

  • Prohibiting supervisors from “friending”,  “following” or otherwise engaging with subordinates on social media sites
  • Disclaiming the use of social media as a method to make a complaint about the terms and conditions of employment
  • Prohibiting language or discourse with co-workers that runs afoul of the employers’ discrimination and harassment policies or code of conduct
  • Prohibiting discourse with co-workers that negatively impacts the workplace
  • Establishes a named employee representative who alone is empowered to speak on behalf of the employer

Employers must be mindful, however, not to run afoul of recent NLRB cases that criticize social media policies that completely bar employees from speaking about the terms and conditions of their employment.