Don’t post anything online that you wouldn’t want your mother – or the Department of Labor – to see.

Anyone who once thought that Facebook was a safe place to vent grievances or insult others probably knows by now that social media is no refuge for posting something that you wouldn’t usually say, for example, to your employee. But a Vermont employer learned that lesson the hard way, with a federal district court allowing a lawsuit to move forward in which a former employee alleges that his former employer’s Facebook posts about him were unlawful retaliation. The case is Su v. Bevins & Son, Inc., Case No. 2:23-cv-560.

Riley Bockus worked for Bevins & Son, a Vermont construction and excavation business. In 2022, Bryan Bevins, the president of Bevins & Son, purportedly failed to pay Mr. Bockus one and one-half overtime hours based on what he believed was incorrect timekeeping by Mr. Bockus. Mr. Bockus confronted his employer about the short pay and threatened to call the labor board if Mr. Bevins didn’t pay him for his work. Mr. Bevins fired Mr. Bockus later that same day. Unsurprisingly, Mr. Bockus promptly filed a complaint with the US Department of Labor (“DOL”), leading to its investigation into Bevins & Son’s pay practices.

Ultimately, Bevins & Son entered into a settlement agreement with the DOL that required the company to pay back wages and liquidated damages to 17 employees and, as compensation for his termination, to pay Mr. Bockus an additional amount of back pay and punitive damages. Without naming any of the employees, the DOL issued a press release about the Bevins & Son’s settlement agreement. A local news station picked up on the release, aired a TV news segment, and published an online story about the matter. Like the DOL, the news reports did not contain the names of any employees.

After the news segment aired, Tiffany Creamer, Bevins & Son’s secretary and treasurer, turned to Facebook to speak her peace. “To anyone who saw and watched the WCAX news cast on our business,” she posted, “All we are going to say is please google the disgruntled employee whom was fired and contributed to the story Riley Bockus (his word and character will be seen).”

Multiple people responded to Ms. Creamer’s Facebook post, including several comments alleging that Mr. Bockus had a criminal record. Both Ms. Creamer and Mr. Bevins “liked” several of the comments related to Mr. Bockus’s previous criminal activity.

The DOL filed a complaint against Bevins & Son on October 26, 2023, alleging that the Facebook post constituted unlawful retaliation against Mr. Bockus. Bevins & Son filed a motion to dismiss.

The Fair Labor Standards Act (“FLSA”) makes it unlawful for an employer to discharge or discriminate against an employee for engaging in FLSA-protected activity, which includes whistleblowing activity such as filing a complaint. An employee who brings an FLSA retaliation claim must show (i) he participated in protected activity, (ii) that activity was known to the employer, (iii) an employment action disadvantaging the employee, and (iv) a causal connection between the protected activity and the adverse employment action. 

Here, there was no dispute that Mr. Bockus participated in protected activity when he filed his DOL complaint and that Bevins & Son knew of that complaint. The third element of retaliation, on the other hand, presented a more difficult question. Can a negative Facebook post be an “employment action disadvantaging the employee” when the post is a true statement about a former employee? Bevins & Son argued that its Facebook post was speech protected by the First Amendment and that, even if it wasn’t, it was nonetheless not an action that disadvantaged its former employee.

The Vermont district court rejected these arguments, explaining that in the Second Circuit, an employment action disadvantages an employee if it objectively dissuades a reasonable worker from making or supporting similar charges. For the purpose of an FLSA retaliation claim, courts have found that an employment action disadvantages a former employee under only relatively narrow circumstances. That said, those narrow circumstances include post-employment disparagement because it can damage the terminated employee’s future employment prospects.

The court concluded that Ms. Creamer’s Facebook post was a disadvantageous employment action for two reasons. First, the post publicly disclosed Mr. Bockus’ identity and his status as the FLSA complainant, which neither the DOL press release nor the news stories disclosed. Second, the post did more than simply identify Mr. Bockus – it also invited readers to investigate his criminal background, which otherwise had no relevance to the DOL settlement or to the news stories. In other words, Ms. Creamer called unwanted and unfavorable attention to Mr. Bockus by highlighting his criminal record, plausibly damaging his reputation, which the court concluded could qualify as adverse employment action.

The court also rejected Bevins & Son’s argument that the First Amendment protected the Facebook post. Although the First Amendment offers broad protections to employers’ speech, such as protecting employers’ right to comment upon matters that impact their business, the First Amendment does not protect speech that is retaliatory under the FLSA. As a result, the court concluded that the Facebook post was unprotected by the First Amendment. “The fact that retaliation comes in the form of speech does not entitle it to special protection,” the court explained. “However, if the speech does not ‘discriminate’ against an employee because that employee has engaged in conduct protected by the FLSA, the employer is entitled to the robust protections typically afforded by the First Amendment.”

The court denied Bevins & Son’s motion to dismiss on May 7, 2024, so the case moves forward. The case is a good reminder that social media posts do not exist in a liability vacuum, even when posting from private accounts outside of work. Accordingly, employers should continue to work with employment counsel when responding to employee conduct that the FLSA (or other statutes) may protect and to train employees on best practices for participating in investigations.