I spoke about social media and employment law last week at the Advanced Employment Issues Symposium last week in Las Vegas. I always find that I learn as much as I teach at these events-both from attendees and from other presenters. One of the most interesting stories I heard in the social-media context was from another employment lawyer. The story that she shared illustrated yet another reason for employers to consider prohibiting (or at least discouraging) supervisors from being Facebook friends with their direct reports.
In her case, the supervisor and employee were, indeed, Facebook friends. Until, that is, the employee filed a charge of discrimination with the EEOC. At that point, the supervisor became nervous about what the employee might disclose about the suit on her Facebook profile, prompting the supervisor to “unfriend” the subordinate. I can imagine that I would conclude something similar-that, once a complaint has been made, it may not be appropriate for the two individuals to have access to one another’s “private” thoughts and personal commentary. And, if I were counseling the employer and was asked whether the supervisor should “unfriend” the employee, I can imagine that I’d likely respond, “yes.”
In this case, though, the employee later added a retaliation charge to the EEOC complaint-which is far more common than most employers seem to realize. Once the claim proceeded to litigation, the employee-plaintiff was asked to identify the facts that prompted her to conclude that she’d been subjected to unlawful retaliation in her workplace. Once of the facts she cited was, as you may by now have guess, the fact that the supervisor immediately unfriended the employee upon learning that the employee had filed a charge of discrimination.
The employee felt that the “unfriending” was the equivalent of what getting the “cold shoulder”-just in a virtual or electronic context. Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard-especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint.