Court Rules Facebook Post Was Unlawful Retaliation Under the FLSA

An employer’s Facebook posts- even true ones- can constitute unlawful retaliation against a former employee under the Fair Labor Standards Act (FLSA). Gabrielle Martin examines a case dealing with this issue in an article on the Squire Patton Boggs website.

In Su v. Bevins & Son, Inc., Bryan Bevins, president of a Vermont construction business, Bevins & Son, got into a pay dispute about overtime with employee Riley Bockus. Bevins fired Bockus when the employee threatened to call the labor board. True to his word, Bockus filed a complaint with the US Department of Labor.

Bevins & Son reached a settlement agreement with the Department of Labor (DOL) involving back wages and liquidated damages to 17 employees, additional back pay and punitive damages to Bockus, and a press release picked up by a local news station. The release didn’t name any employees.

Bevins & Son’s secretary vented about the news cast on Facebook, inviting readers to “google the disgruntled employee who was fired and contributed to the story Riley Bockus (his word and character will be seen).”

Several people responded, alleging that Bockus had a criminal record. Bevins “liked” those comments. In response, the DOL filed a complaint against Bevins & Son alleging that the Facebook post constituted unlawful retaliation against Bockus.

Bevins & Son filed a motion to dismiss. There was no dispute that Bockus participated in protected activity when he filed his DOL complaint, and that Bevins & Son knew of that complaint. The question the district court had to ponder was whether a true but negative Facebook post was an “employment action disadvantaging the employee.”

Bevins & Son argued that it was speech protected by the First Amendment, and even if it wasn’t, it was not an action that disadvantaged Bockus.

The court denied the motion, noting that for the purpose of an FLSA retaliation claim in the Second Circuit, post-employment disparagement disadvantages an employee because it can damage future employment prospects.

Martin calls the unlawful retaliation case “a good reminder that social media posts do not exist in a liability vacuum, even when posting from private accounts outside of work.”