In a recent employee termination case, the Third Circuit Court of Appeals recently upheld the dismissal of race discrimination claims by a bank employee who was terminated due to a social media post.

Plaintiff, a Caucasian woman, was employed as a project manager in her employer’s wealth management department.  In June 2018, a public news article on a social media site reported on the arrest of a local politician who allegedly drove a car through a crowd of demonstrators protesting the shooting death of Antwon Rose, Jr., a young, African-American male, by police officers.  Plaintiff publicly commented on the article under her own social media account, “[t]otal BS.  He should have taken a bus to plow thru.”  Plaintiff’s social media account publicly stated that she was employee of the bank.

The bank was not monitoring plaintiff’s social media account and was not aware of the post until offended users of the social media platform flooded the bank, and even its executive officers, with complaints.  Plaintiff was terminated after an investigation that found her post violated the bank’s conduct and social media policies.

The District Court agreed that plaintiff violated the bank’s policies and granted summary judgment in its favor.  In doing so, it rejected plaintiff’s attempts to point to African-American employees who were not terminated for their social media posts.  The Court specifically found those individuals were not similarly situated because, among other things, their posts did not advocate violence, were not made in the comments section of a public news story, and did not result in a “public outcry.” The Third Circuit affirmed the dismissal and agreed the alleged comparators were not similarly situated.  The Court specifically agreed plaintiff’s post was far more egregious than those of the alleged comparators and was far more likely to harm to the bank’s reputation.

Over the past few years, states around the country have enacted laws limiting an employer’s ability to access the personal social media accounts of job applicants and employees. However, these laws generally do not prohibit employers from conducting certain investigations, such as to ensure compliance with state or federal laws, regulatory requirements or prohibitions against work-related employee misconduct based on the receipt of specific information about activity on an employee or applicant’s personal online account. Employers also may monitor, review, access or block electronic data stored on an electronic communications device paid for, in whole or in part, by the employer, or traveling through or stored on the employer’s network.

When companies are faced with adverse social media activity or campaigns, whether it be by employees, customers, bloggers, etc., they frequently are unprepared to take the appropriate steps to investigate, or to weigh the legal, business, reputational, and related risks in deciding what actions, if any, to take. For this reason, it is important to have a clear workplace social media policy in place to help prevent the likelihood of an incident or at least limit its impact. But while courts and the National Labor Relations Board (NLRB) seem to be employer friendly of late in approval of such policies, it is important to tread carefully, aiming to develop a policy that achieves the company’s legitimate business interests without compromising its employees’ right to privacy under statutory and common law and rights related to freedom of speech. Employers should continue to exercise care  when addressing and/or responding to their employees’ social media usage.  Jackson Lewis attorneys are available to assist with those and other issues and formulate preventative strategies that mitigate risk.

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.