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With so many employees now posting on social media—both at work and after work—employers must consider what to do if an employee complains online about workplace harassment. Recently, the U.S. Supreme Court provided some guidance by declining to review a Tenth Circuit decision that touched on this issue.
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In Debord v. Mercy Health System of Kansas, Inc.,[1] the employee, a nuclear-medicine technician at a hospital, made a series of public Facebook posts during one of her shifts. Some of these posts claimed that her supervisor had intentionally overpaid employees that he favored, and that he “needs to keep his creapy (sic) hands to himself . . . just an all-around d-bag!!” The supervisor saw the posts and reported the employee’s comments to HR. The employer started an investigation into the matter, but soon afterwards terminated the employee for lying on three occasions about making the posts and also interfering with the investigation by sending texts to other employees.
In her lawsuit, the employee claimed that she was sexually harassed and retaliated against for reporting such harassment on Facebook (which she alleged was protected speech). In affirming summary judgment for the employer on both claims, the Tenth Circuit ruled that the Facebook post did not constitute a legally protected harassment complaint because it did not comply with the employer’s harassment reporting policies and did not provide any notice to the employer. In any event, there no pretext existed as the employee was not fired for posting on Facebook, but for dishonesty and disrupting the employer’s investigation.
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