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First Amendment Does Not Protect Social Media Retaliation Against Employees

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A federal court in Vermont recently ruled that the First Amendment does not protect a construction firm and its officials using social media to retaliate against employees who exercise their rights under federal labor law.

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The decision by the U.S. District Court for Vermont came in litigation between the U.S. Department of Labor (DOL) and Vermont contractor Bevins & Son Inc. involving overtime pay, an employee who was fired after complaining about unpaid wages, and social media posts by the company.

The district court rejected the employer’s First Amendment defense and denied its motion to dismiss a DOL lawsuit that alleges it retaliated against employees through social media. The FLSA makes it unlawful for an employer “to discharge or in any other manner discriminate against” any employee because the employee has filed any complaint or triggered any proceeding under the FSLA.

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The court concluded that an employer’s speech is not protected by the First Amendment if it is an adverse employment action taken against an employee who engaged in conduct protected by the FSLA.

Bevins & Son had argued that its Facebook posts involve “true statements about a former employee” and do not qualify as an adverse employment action. The company’s officers also maintained that their Facebook comments “were an expression of their sentiments and grievances” concerning” the DOL’s Wage and Hour Division (WHD) investigation and are therefore protected by the First Amendment.

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However, the employer did not dispute that the employee who was fired had engaged in activity protected under the FSLA.

According to the DOL, the Vermont opinion is one of the first by a federal court to outline the relationship between the First Amendment and the anti-retaliation provision of the FSLA.

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“The court’s opinion is a significant development in Fair Labor Standards Act anti-retaliation law, as it makes clear that employers cannot use speech as a mechanism for retaliation and then rely on the First Amendment to shield themselves from liability,” said DOL attorney Maia S. Fisher in Boston.

Background

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In May 2023, DOL announced a settlement with Bevins & Son to recover about $28,000 in back pay and damages after investigators with the DOL’s Wage and Hour Division (WHD) determined the company unlawfully fired an employee because the employee complained about unpaid wages and said he would inform the labor board.

Bevins also paid 17 other employees $17,356 in unpaid overtime wages and liquidated damages as part of the settlement.

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Riley Bockus sometimes worked more than 40 hours per week for Bevins & Son, entitling him to overtime pay under the FLSA. Bryan Bevins, president of the construction firm, took issue with how Bockus calculated his time worked, and Bockus vowed to bring the issue to the attention of the labor board. One day in September 2022, Bevins omitted one and one-half overtime hours from Bockus’ paycheck. After a dispute over the pay, Bevins fired Bockus, who then filed a complaint with the WHD as he had vowed to do.

The settlement agreement also contained a provision in which Bevins & Son promised not to “discriminate against or discharge any employee for participating in any proceeding or asserting any rights guaranteed” to an employee under the FLSA.

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A DOL press release on the settlement (without names) was picked up by local news station WCAX-TV, which aired a TV news segment and published an online story concerning DOL’s investigation, also without using names.

Tiffany Creamer, secretary and treasurer for Bevins & Son, then posted the following on Facebook:

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To anyone who saw and watched the WCAX news cast on our business. 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). That’s not the whole story & that’s not what the findings were… WCAX did NOT and has not reached out to us in regards to the bullshit story they just aired. Lawyers are involved… All that know Bevins & Sons knows what kind of business we run and what we stand for! Thank you for supporting us. . . . We are still hiring [emoji] & ALWAYS do your do diligence when hiring someone.

Multiple people responded to Creamer’s Facebook post, including one who included a screenshot of a Google search showing that Bockus had engaged in criminal activity. Creamer responded “point made” to this comment. Several other comments also alleged that Bockus engaged in criminal activity. Bevins and Creamer “liked” several of these comments.

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DOL argued that since the point of the post was to disparage Bockus, it qualifies as an adverse employment action under the FLSA.

Another Facebook commenter inquired whether the employees who received the $17,000 were “wrong.” Bevins replied to this comment with the following:

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[T]rue story, I did have to pay that $17,000. And all those employees were already paid for all those hours driving a truck. I just didn’t have record of them driving. Let’s just say that my employees are great and most of that money came back to me!

DOL alleged that with this post Bevins intended to “create an impression” that employees who received back wages and damages under the settlement agreement had returned that money to Bevins “because Bevins wanted to upset Bockus.”

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First Amendment

Few courts have addressed the narrow issue of when the First Amendment protects employers’ speech from FLSA retaliation claims but the Vermont federal district court noted that the U.S. Supreme Court addressed a similar issue in NLRB v. Gissel Packing Co. in 1969. There the high court held that while employers have a First Amendment right to speak on unionism and benefits of specific unions, they may not engage in coercive or retaliatory tactics. If the speech is retaliatory under the FLSA, it is not protected by the First Amendment.

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Gissel established that only limited categories of speech could be prosecuted as unfair labor practices, namely those that contain “a threat of reprisal or force or promise of benefit.”

“The fact that retaliation comes in the form of speech does not entitle it to special protection,” the Vermont court stated. “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.”

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Guided by the Gissel framework, Vermont’s federal district court found that the special media posts by the Bevins & Son officials were retaliatory against Bockus who was exercising his rights under the FSLA and thus they were not speech protected by the First Amendment.

The court found that Creamer’s Facebook post qualifies as an adverse “employment action” for two reasons. First, public disclosure of Bockus’ identity as the FLSA complainant – especially when not otherwise revealed by public documents, such as the settlement or WCAX news story – might “dissuade a reasonable worker from making or supporting similar charges” and might plausibly tarnish Bockus’ reputation and make it more difficult for him to find employment.

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Second, Creamer’s post did more than simply identify Bockus; it also invited readers to investigate his background. When another commenter replied with a screenshot indicating that Bockus “previously engaged in criminal activity,” Creamer responded “point made,” indicating that the “point” of the post was to highlight Bockus’ criminal record.

The court concluded that DOL plausibly alleged that the effect of the post was to disparage Bockus, which qualifies as adverse employment action under the FLSA.

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Bevins characterizes Creamer’s Facebook post as “making true statements about a former employee” and argues that this does not qualify as an adverse employment action. But the federal court found the issue is not that Creamer made true statements about a former employee but that she did so about a former employee who filed an FLSA complaint without that employee being otherwise implicated in coverage of the underlying settlement, and without that employee’s criminal background being relevant to the settlement or news story.

Furthermore, the court noted, even a true report of unlawful conduct can be considered unlawful retaliation under the FLSA.

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