Judge Was Not Amused By Supervisor’s Smiley Face Emoticon

An executive secretary at insurance company Munich Re in New Jersey took extended leave under the federal Family and Medical Leave Act (FMLA) citing her asthma condition.  The company became suspicious that the employee was not really too sick to work, and hired a private investigator to follow her and videotape her public activities.  The investigator captured the asthmatic employee on video shopping at a mall and carrying boxes as she moved into a new home.  When the company saw this video footage, it made the decision to fire the employee for abusing its FMLA leave policy.

The employee sued Munich Re for violating her federal right to take FMLA leave for her asthma condition, claiming that the real reason the company fired her was because it was perturbed that she needed to be out on medical leave from time to time.  In explaining the damaging videos, the employee said her doctor had ordered her to stay active while out on leave, which was why she felt she could go shopping and help with the house move.  ]

During the litigation, the employee’s lawyer requested internal company e-mails sent during the timeframe leading up to the employee’s termination.  In one such e-mail, which was sent the day the employee was fired, her supervisor began with a smiley face emoticon, and asked “:-)) did Ray chat with you about Elaina?”.  Another supervisor responded with, “Yes he did.  Thank you for your help.  That deserves a big :-))!!!”  

The employee argued that the smiley face emoticons in the supervisors’ e-mails showed that the supervisors were all too happy to get rid of her, and merely used the videos as a way to make that happen.  But the company moved to dismiss the case, claiming that the smiley faces in the e-mails were innocuous at best, and that the company had solid grounds to fire the employee for abusing FMLA leave.

A federal judge in Camden, New Jersey refused to dismiss the fired employee’s lawsuit against the company for FMLA retaliation.  In doing so, the judge specifically called out the smiley face emoticons in the e-mails sent between the supervisors on the day of termination, and found that a jury could conclude that Munich Re was happy to terminate the employee because the FMLA leave was inconvenient for them—which is unlawful.  

This case is a timely reminder for companies that snarky remarks and unprofessional digs, whether expressed verbally or obliquely by use of emoticons (or their more refined cousins the emoji—i.e., J), have no place in workplace communications dealing with company business. 

Posted by Declan Leonard, Managing Partner of Berenzweig Leonard, LLP, DLeonard@BerenzweigLaw.com

Company Facing Age Discrimination Claim after Offering Conflicting Reasons for Terminating Employee

James Pierson worked at the Tennessee plant of a large national printing company for nearly forty years, when he was suddenly laid off at the age of 62. The company initially told Pierson that his layoff was due to a company-wide cost-cutting move, and that others were also being laid off to save the company money. But a human resource manager at Pierson’s plant prepared a document in support of the layoff that described Pierson as not being a “team player” and as lacking good interpersonal skills. At no time did anyone at the company mention Pierson’s age or longevity at the company as a reason for the layoff.

Pierson sued the company for age discrimination, but a Tennessee federal court dismissed the case prior to trial because Pierson was not able to point to any statement or document where the company took his age into account during the process of the layoff. Pierson appealed the dismissal of his case, and he won the appeal.

The federal appeals court in Tennessee ruled that because the company offered several different reasons to justify its decision to lay Pierson off, a reasonable jury could infer that these shifting reasons were intended to cover up the real reason for his lay-off: that being age discrimination. So even though there was no evidence of age discrimination presented to the court, the fact that the company did not speak with a unified and consistent voice as to why it laid Pierson off opened the company up to legal liability for age discrimination.

This case underscores just how critical it is for companies who are conducting a layoff or termination to be consistent from start to finish about why it is taking the personnel action. Even if the real reason for the termination is poor performance or misconduct by the employee, the company needs to make that reason clear at each phase of the separation process, or risk potentially exposing itself to legal liability for discrimination.

Declan Leonard is a Managing Partner of the business law firm Berenzweig Leonard, LLP. He can be reached at DLeonard@BerenzweigLaw.com.

Are Employee’s Social Media Discussions Protected?

As we’ve reported, the National Labor Relations Board (“NLRB”) continues to take an aggressive stance on regulating employment decisions based on employee social media postings. Contrary to the recent trend of broadly construing employee social media postings as covered under protected activity, the NLRB reversed course and recently ruled in favor of an employer after terminating an employee based upon what it believed was an improper Facebook group message post.

In the case, an employee worked at a small medical office performing various office duties for her employer. The employee at issue in the case, along with nine other individuals who were comprised of both former and current employees, took to a private group chat on Facebook to organize a social outing. After briefly planning the social event, the subject quickly changed after the employee mentioned that another former employee may be returning to the company as a supervisor. This led to the employee beginning an attack on her current supervisor claiming that her supervisor "tried to tell [her] something today and [she] said aren't you the supervisor for mind and body ... in other words back the freak off..." The employee’s rant did not stop there as she began using profanity and stated “FIRE ME …Make my day.” Other than one other current employee stating that the employee’s comments made her laugh, no other current employees took part in this part of the discussion.

To no surprise, one of the current employees on the group chat showed this discussion to their employer. The employer called the disgruntled employee’s bluff and ended up firing her as it was clear to the employer that she was no longer interested in working for the company.  The terminated employee responded by filing an NLRA charge against the company claiming that her Facebook comments constituted protected concerted activity.

The NLRB found that the employee’s conduct on the Facebook group message did not constitute protected activity as the postings did not involve shared employee concerns over terms and conditions ofemployment. The NLRB largely focused on the test for “concert” and whether the employee is engaged “in with or on the authority of other employees, and not solely by and on behalf of the employee himself.” Ultimately, the NLRB concluded that the terminated employee’s “comments merely expressed an individual gripe rather than any shared concerns about working conditions,” and therefore, the terminated employee’s charge should be dropped.

This is a big victory for employers as up until this opinion, the NLRB has continuously taken a very aggressive stance against employers on social media policies and terminations based on violations thereof. When making these termination decisions related to online postings, employers will want to consider what was said, by whom, and who responded in order to determine whether such conduct would be considered “protected concerted activity.” Though this opinion does give employers comfort if and when it decides to make a termination decision based on improper Facebook postings, it is always critical for you first to discuss these decisions with an experienced employment attorney.

The author, Nick Johnson, is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Nick can be reached at NJohnson@BerenzweigLaw.com.