Author: Beth P. Zoller, XpertHR Legal Editor
A Texas court recently ruled that employees have no inherent right to privacy in their Facebook postings and social media activity and that, under certain circumstances, employers still may be able to take adverse action against employees based on such postings.
In Roberts v. Careflite, 2012 Tex. App. LEXIS 8371 (2012), Roberts, a paramedic employed by Careflite, posted on the "Facebook wall" of a co-worker that "she had transported a patient who needed restraining and that she wanted to slap the patient." This post was subsequently viewed by Careflite's compliance officer, Sheila Calvert, who sent a message to Roberts asking her to consider removing the post because of the potential negative impact it may have on the public which could lead to the suspension of Roberts' license. Roberts responded "Yeah, whatever" and told Calvert that sometimes "a patient needs an attitude adjustment." Calvert responded by advising Roberts that the posting may be in violation of Texas law which prohibited her from engaging in activities which betray the public's trust in emergency medical services and that the posting further violated company policy by calling into question Careflite's honesty, integrity and reputation. While Roberts eventually removed the initial posting, she was ultimately terminated based on the posting as well as her "unprofessional and insubordinate" response to Calvert.
Court Finds No Invasion of Privacy
The Texas Court of Appeals ruled that the termination was justified. According to the court, Roberts could not prove that Careflite intruded on her right to privacy in a manner that was highly offensive to a reasonable person as the posting could be widely viewed by the public and third parties. Further, the court rejected Roberts' argument that the right of employees to engage in private discussions about patients outweighed issues of public concern and the public's confidence in the ambulance company. Although Roberts argued that the termination violated the National Labor Relations Act in that the posting constituted protected concerted activity under Section 7, this issue was not before the court and the court found it irrelevant to the issue of whether Careflite unlawfully invaded her privacy.
Advice for Employers
In light of this ruling, employers should continue to advise employees that all social media postings posted on Facebook and other social media are public and to think carefully before posting. It is permissible to advise employees to use their best judgment and exercise personal responsibility when participating in social media or posting online.
It also confirms that an employer may still be able to take adverse action against an employee based on social media activity if the posting does not concern protected concerted activity because employees have no inherent right to privacy in their social media activity. This is especially true in cases like this where postings violate company policy, state law, the employee's confidentiality obligations - or constitute unlawful and inappropriate behavior such as harassment or discrimination - which clearly lies outside the realm of protected concerted activity.