It is no longer uncommon to see articles and blog posts about employees who have lost their jobs due to a foolish Facebook post; unprofessional behavior shared on a YouTube video or other social media mishap. Recently, however, an employee in Atlanta, Georgia was not fired for his own Facebook post of a picture, but rather the comments his “friends” made regarding the picture he posted. Can a business fire an employee for something that a “friend” of the employee posted on social media?
What The Employee Posted:
Gerod Roth worked for Polaris Marketing Group in Atlanta. One of Roth’s co-workers, Sydney Shelton brought her 3-year old son, Cayden, to work after school one day, and Roth took what appears to be a “selfie” of him and Cayden. Roth is white; Cayden is African-American. Roth says that Cayden asked Roth to take the picture. Roth further explains that he made this picture with Cayden his Facebook profile picture because his girlfriend was applying for a new job and she “went on a social media blackout and asked [Roth] to remove her from [his] profile picture.” The picture with Cayden was the first picture in his queue that did not also show his girlfriend, so Roth made the decision to use that picture for his profile on Facebook. His decision eventually went viral.
What Roth’s Facebook Friends Commented:
After he posted the picture with Cayden, Roth’s Facebook friends made racist and derogatory remarks/comments, including calling Cayden “Sambo”, and “kunta…kunta kinte,” and other comments like, “I didn’t know you were a slave owner” (which received at least 10 “Likes” – the person who made this post reportedly lost her job elsewhere), and “I’ll feed you but first let me take a selfie.” According to a news report from Atlanta, Roth says he only added one comment. In response to a post of “Oh you mean to tell me that you just have wild kids running through your office building?”, Roth admits he posted “he was feral.” Roth states that it “was interpreted as racist and that, honestly, was not [his] intention whatsoever.”
To view the picture and screenshots of the comments, see the Gawker article titled “Guy Fired After He and His Friends Post Racist Facebook Comments About Coworker’s Kid”. To review the news report, and to see Roth’s response, see the Fox 5 Atlanta story: “Georgia Man Loses Job, Upsets Mother after Facebook Post”.
What The Employer Did:
Here, the company terminated Roth’s employment. It is likely that Roth was an “at-will” employee, like most employees in the United States. As such, Polaris Marketing Group was legally free to terminate Roth’s employment for any lawful reason, or for no reason at all. Likewise, as an at-will employee, Roth could have resigned at any time as well.
What We Don’t Know, and What Employers Should Consider Before Terminating Any Employee:
- At-Will Employment? While it is likely Roth was an at-will employee, Polaris Marketing Group hopefully reviewed to see if there was an employment agreement with Roth that may have altered the at-will relationship, and may have put controls on circumstances that could lead to his termination.
- Employee Handbook Policies? Furthermore, we also are unaware of any Employee Handbook policies that also may have limited the company’s ability to terminate Roth’s employment at-will. For example, the Handbook may have had a strict “progressive discipline” policy that Roth may have been entitled to go through before firing (warning, suspension, etc.). If the Company has an attorney-approved Handbook, it is highly unlikely that a mandatory progressive discipline policy was in place.
- Union Contract? Similarly, if Roth was a member of a union, the company should review the collective bargaining agreement and be sure to follow the steps contained in it.
- National Labor Relations Act (NLRA)? Additionally, the company should at least analyze whether Roth’s post and the comments made by others could somehow be protected concerted activity under the NLRA. Here, it is extremely unlikely that the NLRA would protect Roth. However, if Roth instead posted a picture of the office and he and his co-workers then commented about the work environment, working conditions, wages, or the like, then the NLRA would likely protect such activities.
- Conduct a Thorough Investigation? When it is a clear-cut case, an investigation seems to be less important. Here, the post and comments involved at least two employees. At least a cursory investigation, though not legally required, may have been prudent. For example, did the company obtain Roth’s version of events? Indeed, Roth has stated that his post has been taken out of context. Did Roth see the comments his friends made? If so, when did he see them, and did he try to prevent further comments, did he attempt to delete them, or delete the picture (or conversely, did he “Like” any of the racist comments)? Did Roth reach out to Cayden’s mom (Roth’s co-worker) after he started to see the racist comments? Were any of Roth’s co-workers involved in the online activities?
- Focus On Those Who Remain Employed: After a termination, particularly one that has received attention in the media, companies should refocus on the employees who remain employed. Here, this can/should include a review of social media guidelines/policies with employees (what to post, how to handle unprofessional social media activities, and obtaining permission to post a picture of someone other than yourself (particularly a minor)). Furthermore, it may be appropriate to conduct elimination of bias training as well. Finally, it may not be a bad idea to schedule employee morale or team building activities in addition.
What do you think? Should Roth have been fired from his job due to the comments made by his Facebook friends?
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