Manager's drunk Facebook threats + Boss's Buddha blogging = retaliation claim?

February 19, 2013
By Eric B. Meyer on February 19, 2013 7:00 AM | | Comments

CoyoteUgly.LYH No body shots here; just a swift federal court kick to Coyote Ugly's social-media jewels.

You get the ice. I'll pour a double and serve up the details after the jump...

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Stewart v. CUS Nashville, LLC is a Fair Labor Standards Act action in which a bunch of employees who worked for Coyote Ugly claim that their employer shorted them on overtime pay. Two of the plaintiffs, Misty Blu Stewart and Sarah Stone, claimed that after they sued, they were the object of threatening posts appearing in various social media platforms, and thus decided to pursue claims of retaliation.

Specifically, Ms. Stewart saw this post on the blog of the owner of the Coyote Ugly location at which she worked. And Ms. Stone, alleged that she felt threatened when she saw this status update from Facebook friend, Daniel Huckaby, a Coyote Ugly Director of Operations. Huckaby, who admitted to being intoxicated on the night the post was made, and claimed not to recall making (or subsequently deleting) the status update.

Retaliation comes in all forms.

The United States Supreme Court has held that, any employer action that may "dissuade a reasonable worker from making or supporting a charge of discrimination" can be retaliation. Although the Court in that case was dealing with a claim of discrimination, other courts have recognized that the same maxim holds true when the underlying claim is a violation of the FLSA. 

And in this case, the court had little difficulty concluding that a blog post from the boss could have deterred Ms. Stewart from continuing to pursue her FLSA claims. The court then applied the same logic to the threatening Facebook update and its impact on Ms. Stone in concluding that she may have a viable claim for retaliation.

Let's talk takeaways:

For the HR professionals: Make sure that the anti-retaliation language in your employee handbooks is broad enough to include social media. Put a different way, if you downloaded your current employee handbook from a Prodigy message board; time to update.

Lawyers: When employment litigation ensues, it is not enough to reinforce to the key players at the company the importance of generally refraining from any behavior that could be construed as retaliatory. Be more specific and instruct them to be smart about social media use.

[h/t Venkat Balasubramani @ Technology & Marketing Law Blog]