Legal Blog

How a Facebook “Like” Can Affect Your Job and Other Legal Workplace Developments

While recent Supreme Court decisions garner the bulk of legal media attention, business owners and HR personnel should be equally aware of lesser-known rulings made by other federal and state courts in their jurisdiction and neighboring jurisdictions. Indeed, even a matter as seemingly minor as a Facebook “Like” can prompt significant debate over our First Amendment rights. So what is the legal status of a Facebook “Like” exactly?  Read on for the Fourth Circuit’s decision, and other current employment law happenings you need to know:

Facebook “Likes”

During his campaign for reelection in 2009, a sheriff in Hampton, Virginia noticed that six of his deputies had checked the “Like” box on a Facebook page belonging to a rival candidate. In response, the sheriff fired all six staff members—one of whom soon filed suit, alleging wrongful termination. In a reversal of U.S. District Judge Raymond A. Jackson’s decision in 2012, the Fourth Circuit Court of Appeals ultimately sided with the plaintiff and found that a Facebook Like could be considered an act of free speech. In its decision, the court wrote that clicking “Like” was “the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech,” and that “[o]n the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement.”  This ruling follows similar decisions that have deemed posts written on social networking sites forms of protected speech. Social media is a popular subject for litigation, and there’s no telling how the next major development will take shape. For now, employers are advised to be careful when taking disciplinary action against an employee for social media behavior and when drafting policies that include blanket prohibitions of social media outside of work, including Liking a competitor’s page on Facebook. Looking for more information about the current state of social media in the workplace and its associated legal issues? Make sure to read Jonathan A. Segal’s extensive article on social media use in hiring in the recent volume of HR Magazine, available here.

EEOC v. Ford

In April 2014, the Sixth Circuit made a momentous ruling on telecommuting. In short, it determined that working from home was a reasonable accommodation under the Americans with Disabilities Act (ADA). Advancements in conferencing technology, the Court opined, have made it easier for teams to collaborate remotely. Thus, an employee may not have to be physically present to attend work and perform the essential duties of her job.

  • Work attendance is still important. Many supervisors rely on face-to-face interaction and group meetings to coordinate tasks between employees, keep tabs on the status of current projects, and find solutions for time-sensitive problems. However, applications such as Skype can provide sufficient alternatives, according to the Court, so long as their use doesn’t interfere with the workplace’s telecommuting policy. Additionally, any employees who opt to telecommute should be able to fulfill the full responsibilities of their job descriptions off-site.
  • This decision may backfire on employees who benefit from telecommuting. As Judge David W. McKeague wrote in dissent: “The lesson for companies from this case is that if you have a telecommuting policy, you have to let every employee use it to its full extent, even under unequal circumstances, even when it harms your business operations, because if you fail to do so, you could be in violation of the law. Of course, companies will respond to this case by tightening their telecommuting policies in order to avoid legal liability, and countless employees who benefit from generous telecommuting policies will be adversely affected by the limited flexibility. . . . I find this outcome regrettable.”
  • It could all change again soon. Ford won a rehearing which has been scheduled for late 2014 at which time all Sixth Circuit judges will hear the case again—in what is called an en banc session—so stay tuned for further developments.

The EEOC’s New Focus

The telecommuting decision is not the only major news story to emerge from the EEOC lately. Jenny Yang, the EEOC’s recently appointed Chairperson, has pledged to focus the Commission on two primary initiatives: pregnancy discrimination and workplace retaliation. “Many people would be surprised that [pregnancy discrimination] continues to be prevalent in the workplace,” she said, in an interview with SHRM. She stressed the necessity of a closer relationship between the EEOC and the business community in order to bolster compliance and empower workers: “How do we ensure that all workers understand their rights and are willing to come forward?” Yang’s mandate comes at a time when retaliation claims are on the rise, both as a subject of litigation and a legal topic in itself. In fact, the Supreme Court recently determined that plaintiffs claiming retaliation resulting from discrimination must prove the direct link between the protected activity and the retaliatory action. Mere proximity and time is not enough; there must be an exclusive, “but-for” motive behind the retaliation. That is, a plaintiff has to show there was no reason other than discrimination for their employer to retaliate. The prevalence of pregnancy discrimination, on the other hand, is perhaps not as surprising as Yang suggests. As a management-side employment attorney, I often get questions about pregnancy discrimination and accommodation: What accommodations are reasonable? Who pays for them?  Should we allow a pregnant employee additional time-off? Etc. Pregnancy is a fact of life for many women in the workplace, and employers regularly have to contend with it. The EEOC has also released Enforcement Guidance for pregnancy discrimination and related issues. Though I recommend being generous to and considerate of pregnant employees—after all, I worked through two pregnancies myself —I find that these guidelines greatly expand employees’ rights. At around fifty pages, the EEOC’s guidance is rather long, so allow me to highlight several of its key points:

  • Past pregnancy can come into play during discrimination: “An employee may claim she was subjected to discrimination based on past pregnancy, childbirth, or related medical conditions. The language of the Pregnancy Discrimination Act does not restrict claims to those based on current pregnancy. As one court stated, ‘It would make little sense to prohibit an employer from firing a woman during her pregnancy but permit the employer to terminate her the day after delivery if the reason for termination was that the woman became pregnant in the first place.’” There has to be a “causal connection,” not just close timing between the pregnancy and the alleged discrimination.
  • A potential or intended pregnancy can also count: “The Supreme Court has held that Title VII ‘prohibit[s] an employer from discriminating against a woman because of her capacity to become pregnant.’ Thus, women must not be discriminated against with regard to job opportunities or benefits because they might get pregnant.” This could include any woman of childbearing age who has not gone through menopause.
  • Disparate treatment and forced leave can be forms of discrimination. On this point, I agree. I have witnessed times when a pregnant employee asks HR about her rights under FMLA (Family Medical Leave Act), and management subsequently overreaches in its attempts to protect her and her unborn child from perceived workplace injuries. Unless the employee lays out her own restrictions, supported by documentation from her medical provider, any unilateral endeavor to help her is not in her best interest and may actually constitute discrimination.



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