Employer Postings Lead to Lawsuits
If you’re an employer or manager who is being sued by some of your employees, don’t go posting derogatory comments about them on your company website or Facebook page unless you want to get an additional lawsuit. That’s what happened to Coyote Ugly founder and franchise president Liliana Lovell who, in addition to being sued for violating the Fair Labor Standards Act, is now being sued for retaliation because of postings she and one of her managers made about the employees after they filed the FLSA suit.
According to court documents found on www.scholar.google.com, former bartender Misty Blu Stewart filed a lawsuit on April 7, 2011 against Coyote Ugly alleging an illegal tip-pooling practice and failure to compensate employees for all time worked (which are violations of the FLSA). On May 11, 2011, Lovell posted the following on the Coyote Ugly website: “This particular case will end up pissing me off (,) cause it is coming from someone we terminated for theft. I have to believe in my heart that (,) somewhere down the road, bad people end up facing bad circumstances!” She then went on to call Stewart a derogatory name using language that is inappropriate to quote in a family newspaper.
Meanwhile, bartender Sarah Stone, who had joined Stewart in the FLSA lawsuit, was working an anniversary party at the saloon attended by Coyote Ugly Director of Operations Daniel Huckaby, who knew that Stone was in on the suit. Stone said that, while he was sitting across the bar from her, Huckaby made the following post to his Facebook page: “Dear God, please don’t let me kill the girl that is suing me…that is all…” Huckaby was intoxicated at the time and doesn’t recall making or later removing the post; however, Stone, who at the time was Facebook friends with Huckaby, saw the post an hour after it was posted while looking for Facebook updates on her cell phone while at work.
The following night, after hearing that a customer had fallen down some stairs and was threatening to sue, Huckaby yelled out in front of Stone, while somewhat facing her: “Why does everyone sue? I’m tired of all these (sexist slur) taking their issues out on our company. They’re (expletive) idiots.” Stone quit the following day and, as in the case with the Facebook posting, Huckaby had no recollection of the incident.
Both former employees then filed retaliation lawsuits and, on February 6, 2013, the U.S. District Court for the Middle District of Tennessee denied Coyote Ugly’s request that the cases be dismissed and are allowing them to go forward.
The retaliation claims are unusual in that, by definition, retaliation involves some kind of adverse action against an employee (such as termination) for engaging in a protected activity (such as filing a complaint). Stewart says she was retaliated against when Lovell posted her message on the Coyote Ugly website saying that she was fired for stealing (although she was not mentioned by name); however, Stewart was no longer an employee at the bar, so how was she retaliated against? Stone says she was retaliated against when Huckaby posted his Facebook message (she also was not mentioned by name) and yelled disparaging remarks in front of her. Even though she was still an employee, there was no adverse action, so how was she retaliated against?
Essentially, the court found that the website posting, Facebook posting, and Huckaby’s outburst could support the former employees’ claims that they were retaliated against for engaging in a protected activity (filing the FLSA lawsuit).
Employers wishing to avoid a similar fate should refrain from doing the following:
• Making disparaging remarks about employees or former employees who file complaints with the government against you on social media sites.
• Revealing confidential information, such as why you fired someone, to anyone who doesn’t have a need to know.
• Implying that you’d like to kill an employee.
• Being Facebook friends with your employees.
• Posting on Facebook while intoxicated.
• Being intoxicated while at work.
• Allowing employees to check Facebook while on the clock.
According to social media coach Tasha Turner, “Social networking is about building people up in your network NOT tearing them down.” As this case demonstrates, employers who use social media to air their grievances about their employees after they have filed a complaint against them are perhaps the ones who are the idiots.