Social Media Strikes Back! The Impact of Off-Hours Communications with Employees on Claims of Discrimination


How many of us have stared at a Facebook friend request from a boss or co-worker and wondered if clicking “accept” was a good decision? I know I’ve wondered if I really want my boss to know how many tattoos my sister has or what festival I spent the day at on Saturday instead of churning out more work. I’m willing to bet you’ve wondered something similar and for good reason. There is a massive amount of information stored on Facebook and other social media sites that could impact employer perceptions of employees. Recently, the United States District Court for the Western District of Virginia found that knowledge of a protected characteristic, in this case a disability, may be imputed to the employer from a supervisor’s conversation with the employee on Facebook.

In Croy v. Blue Ridge Bread Inc., d/b/a Panera Bread, Civil Action No. 3:12-cv-00034 (W.D. Va, July 13, 2013), an employee recently diagnosed with HIV sent a Facebook message to one of his supervisors stating that he had been to an infectious disease specialist and there was a strong possibility that he was HIV positive. He went on to discuss his possible diagnosis with other supervisors. Panera Bread fired the employee just over a month after returning to work from sick leave because the employee failed to properly submit paperwork. He and other employees had made similar errors in the past and had not been formally disciplined. Panera Bread argued that the Facebook conversations did not accurately convey the extent of the employee’s conditions and that Panera Bread’s three strikes policy was sufficient to justify discharge.

The court declined to dismiss the case because there was sufficient evidence that the employee was meeting Panera Bread’s expectations at the time he was fired, primarily because of its past failure to discipline for similar conduct, and because the proximity of time between the Facebook conversations and his termination inferred discriminatory intent. Although the employee returned to work without restrictions and was not exactly forthcoming with Panera Bread about his diagnosis and health condition, the court found that the employee’s Facebook conversation with a supervisor undisputedly put Panera Bread on notice of his illness.

Although a jury has yet to determine the outcome of this case, employers should take away some important lessons. First, it is critical that supervisors understand the implications of their off-hours relationships with employees. While it is reasonable and often advantageous for supervisors and employees to have off-hours friendships, supervisors should know how and when to report information gleaned from these relationships. Second, employers should review and update the company’s social media policy. While you cannot prohibit social media conversations, you can limit the power of certain personnel to act behalf of the company. Finally, when disciplining employees, regardless of whether the employee is a member of a protected class, make sure you are applying disciplinary measures consistently across the workforce. Looking back at similar occurrences and keeping track of all disciplinary measures taken will help to ensure consistency. Doing all of these things will give you the backup needed to terminate a poorly performing employee with peace of mind that you’ve made a just and lawful decision.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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