Social Media Fails

Poor judgment in using social media knows no age limits. In a recently filed lawsuit against Caterpillar, a 52-year-old female former employee alleges that she was terminated because of her age. Caterpillar maintains that the employee was terminated because she posted something on social media that could be perceived as harassment.

Tammy Applebaum, a former distribution clerk at Caterpillar's Lafayette, Ind., plant, alleges she was fired for writing a comment responding to a younger co-worker's Facebook post. Natasha Burns, the younger employee, also happened to be dating Applebaum's son. According to the complaint, Burns posted a Facebook message alluding to "all the guys" wanting to "take nude photos" of Burns. Applebaum then posted a comment on Burns' Facebook page, saying "you've been down that road before."

We don't know whether Applebaum caught any grief from her son, but she did catch some serious grief from her employer. Shortly after the exchange, Caterpillar told Applebaum she was being discharged because it feared she would create "a hostile working environment" for Burns, the complaint said.

Applebaum claims that Burns (who is under the age of 40) was not disciplined for posting on Facebook during working hours, and Applebaum, who is over 40, was discharged, and therefore, Applebaum was discriminated against.

This is another example of how employers may monitor employee social media posts and take action on those that could violate the company's policy against harassment. Employers have also used employee social media posts to prove that employees have lied about illnesses or reasons for absenteeism. For example, our firm handled a situation for a client where a now former employee called out sick to work for a week, and then posted photographs of herself and her family enjoying a trip to Disney World during that same week.

However, companies also need to be aware that some employee social media posts may be protected by the National Labor Relations Act, especially where those posts pertain to wages, hours and other terms and conditions of employment. Therefore, a company should have its written social media policy reviewed by competent employment counsel to ensure that the policy does not run afoul of the NLRA or other federal or state laws.