The Employer's Legal Resource: Can Your Company File a Lawsuit Over a Negative Social Media Post?

08.01.16

Leona Payne applied for a position as a laborer with WS Services, LLC, a company based in Cushing, Oklahoma, that specialized in exterior tank coating, interior tank lining, and pipeline restoration. Mrs. Payne's husband had worked for WS Services for five years and encouraged her to apply after learning that the company was looking to hire new laborers. Mrs. Payne did not receive a job offer, and Mr. Payne was terminated the week after she applied.

Over the course of these events, Mrs. Payne posted several derogatory comments about the company on her Facebook page, including remarks that WS Services "is a bad company" that delivered "fake promises" and that the owners were greedy and underpaid employees to work in "undesirable conditions." In a separate post, she commented that "they don't hire women" and that "male womanizing people" run the company. Not content with restraining herself to cyberspace, Mrs. Payne walked up and down the streets wearing a sandwich board stating that her husband was "fired after wife apply's [sic] for labor position."

Mrs. and Mr. Payne filed a lawsuit against the company, alleging claims for discriminatory refusal to hire and retaliatory termination, respectively. Payne v. WS Services, LLC, CIV-15-1016, 2016 WL 3926486 (W.D. Okla. July 18, 2016).The company counterclaimed against the couple, claiming Mrs. Payne's Facebook posts and picketing message about the company were defamatory. The couple moved to dismiss the counterclaim on the grounds that Mrs. Payne's statements were constitutionally protected speech.

In ruling on the motion to dismiss, the court found Mrs. Payne's Facebook comments that WS Services was a "bad company," delivered "fake promises," and had greedy owners were privileged under Oklahoma law as statements of opinion because the comments could not be verified as true or false. Mrs. Payne's second round of Facebook comments--that the company is run by "male womanizing people" and "they don't hire woman [sic]"--presented a closer question. Generally, accusations of bigotry or bias amount to mere name calling and are not actionable. While allegations of being a womanizer can be akin to calling someone a bigot, Mrs. Payne's statements--when read in context--went beyond mere name calling. In her Facebook posts, Mrs. Payne repeatedly stated that the company does not hire women, which the court found could reasonably be construed by others to mean that WS Services engages in discriminatory, gender-based hiring practices. Nor were these statements protected as opinion, as they created an inference of undisclosed defamatory and false facts--specifically, that discriminatory hiring practices exist within WS Services. This removed Mrs. Payne's statements from the realm of protected speech, and the court ruled that the company's defamation claim as to these comments can continue. Similarly, the court found that the message on Mrs. Payne's sandwich board stating "Husband Fired after wife apply's [sic] for labor position" created an inference to the public that Mr. Payne was fired as a result of his wife applying for a job with WS Services. The company's defamation claim also survived the motion to dismiss on this issue.

Internet defamation raises a big question: If someone posts defamatory comments about your company online, should you take legal action? The answer is that it depends. If, as is often the case, the online statements are posted by a current or former employee of the company, the defamatory content may be protected under the National Labor Relations Act if it concerns the individual's terms and conditions of employment (e.g., wages and working conditions). Thus, while false and defamatory statements made on the internet can severely damage the reputations of companies of all sizes--from small businesses to Fortune 500 companies--employers must be mindful of filing a lawsuit for internet defamation that might be considered retaliatory.

While filing a defamation lawsuit may be appealing when your company is being smeared on social media, each situation will be different and companies should take a careful approach on these issues. First and foremost, companies dealing with internet defamation should always seek the advice of counsel. Keep in mind that litigation will highlight the issue, potentially creating public relations concerns that do more harm than good. Defamation claims are difficult to prove in even the best cases, and employers are often unsuccessful in raising them. In some situations, companies can remove the negative post by contacting the web site where the post appears and invoking the site's User Agreement or Terms of Service prohibiting defamatory content. Another option is to contact the person making the posts (if you know who it is) and try to "buy your peace." Although such a strategy runs contrary to the notion that "we do not negotiate with terrorists", it m ay be the quickest way to get the content removed and prevent further damage to your company's reputation.

By Destyn D. Stallings, DStallings@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment litigation and counsels clients regarding everyday employment matters. 

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