Waitress Fired After Complaining on Facebook: "Legally Justified" Does Not Always Equal "Good PR"

The Huffington Post reports that Brixx Pizza fired a North Carolina waitress after she complained on Facebook about a customer's stingy tipping.

According to the Post, a couple sat at their table for three hours, and waitress Ashley Johnson, 22, said the customers kept her at work an hour after she should have been able to clock out. The couple rewarded her with a $5 tip.

A frustrated Johnson criticized them on her Facebook page -- calling the couple cheap and mentioning her employer by name.

Brixx got in touch with Johnson shortly thereafter, informing her that it was terminating her employment because her Facebook post violated company policy against disparaging customers and casting the restaurant in a negative light via social network sites.

Brixx posted the following official statement on its Facebook page discussion board:

Brixx Wood Fired Pizza appreciates your feedback! Please know we value our employees very much, which is why we are one of the few small restaurant companies that offers benefits. Brixx also values our customers and has a policy against making negative remarks about them.

As an employer, it is necessary to enforce policies for the benefit of all our hardworking employees and valued customers. Our policies ensure Brixx is an enjoyable place to both work AND dine. We welcome your comments, but please keep it clean!

As evidenced by the backlash on the company's Facebook page, employers have to consider not only legal implications of a Facebook firing, but also the practical implications -- including a potential backlash from the public that may be triggered by discipline for an employee's online activity. Although the company may be able to justify the termination from a legal perspective, it won't be easy to recover from the PR nightmare that could ensue.   

One user commented, in part, "You've gone & made Ashley Johnson famous. And your company INfamous." One particularly insightful comment aptly summarizes the point of my post:

Thanks to Becca for the tip on this story!

Fifteen Privacy & Consumer Groups File FTC Complaint Against Facebook

It's no real secret that Facebook's latest privacy changes have stirred up a lot of conversation.  In response to those changes, fifteen agencies recently lodged a formal complaint against Facebook with the Federal Trade Commission.

Not-for-profit research center, Electronic Privacy Information Center ("EPIC") announced last week that it -- along with 14 other privacy and consumer protection organizations -- filed a complaint with the FTC accusing Facebook of engaging in unfair and deceptive trade practices. 

The complaint argues that changes Facebook made to its privacy settings adversely affect the network's users by disclosing personal information that users previously had not made available or had previously restricted.  The complaint states such changes constitute unfair and deceptive trade practices that "violate user expectations, diminish user privacy, and contradict Facebook’s own representations.  Pointing to the specifics, Paragraph 2 of the Introduction alleges:

"The following business practices are unfair and deceptive under Section 5 of the Federal Trade Commission Act:  Facebook disclosed users’ personal information to Microsoft, Yelp, and Pandora without first obtaining users’ consent; Facebook disclosed users’ information—including details concerning employment history, education, location, hometown, film preferences, music preferences, and reading preferences—to which users previously restricted access; and Facebook disclosed information to the public even when users elect to make that information available to friends only." 

EPIC has complained to the FTC about Facebook and other social networking sites (such as Google Buzz) in the past, but EPIC has made the May 5, 2010 complaint against Facebook available here.

Update: Social Media Law Student just shared a relevant post:
ACLU Weighs in on Facebook’s Privacy Issues.

Facebook Privacy: More Changes & Controversy (Weigh In!)

In its short life, Facebook has experienced a number of changes to its privacy policy.  You may remember my December post, where I discussed a number of controversial changes being implemented -- perhaps most sigificant at that time:  deeming "publicly available" certain information users once kept private.  As I alluded to in last Thursday's blog post, Facebook is at it again.  This time, Facebook boldly makes its users' interests, "likes," and connections publicly available.

As this PCWorld article points out, Facebook initially gained popularity because of its default privacy restrictions -- when you joined, the default settings generally protected your personal information.  Those were the good ol' days.  As Mr. Tynan says of Facebook today:

The fact is, Facebook has steadily - and quite deliberately - carved away at the privacy protections its service was originally founded upon.  It has essentially created a bait-and-switch scam:  promising one thing but delivering something entirely different.

The Electronic Frontier Foundation offers an enlightening timeline illustrating what it calls Facebook's "eroding privacy policy."  A graphic representation of the changes can be found on Matt McKeon's site.

As Mashable mentions, despite the privacy concerns among users, Facebook's new social plugins have been popping up with increasing frequency across the web.  The plugins let sites add certain Facebook features without making users log in to use them.  For example, readers of my blog can "like" a post by clicking the new button appearing right under the post title.  The plugins were announced less than a month ago, and they already appear on more than 100,000 web sites. 

Facebook claims it's just trying to give users more social and personalized experiences on the web. According to the popular social networking site, its users love the changes and the controversy/criticism comes largely from media and commentators rather than its users.

What do you think?  Are Facebook users really happily opting in to enjoy more social features, or has Facebook duped its users?  Do you think more users will begin dropping Facebook?

Erickson's Social Networking Law Blog Facebook Page

Erickson's Social Networking Law Blog just launched its official Facebook Page! (These used to be called "Facebook Fan Pages," but apparently, now the cool kids are just calling them "Facebook Pages." Like when Ricky Schroder became Rick Schroder.)

It's brand new, so please feel free to send me any suggestions you may have for improvements. If you visit the page, please consider showing your support by clicking the "Like" button! (This, too, has changed. Users used to become "Fans" of Pages . . . well, they actually became "Fans" of "Fan Pages" . . . but now, rather than selecting "Become a Fan," users connect to pages by clicking the "Like" button. This is among the most recent of Facebook's continued changes to formatting and privacy controls -- the propriety/implications of which may be the subject of a future blog post. In the meantime, I may have qualified for the world's longest parenthetical award.)

Social Media & Hiring Posts Published on New Iowa Employer Law Blog

The Dickinson, Mackaman, Tyler, & Hagen employment and labor law practice group recently launched a new law blog, Iowa Employer Law Blog (iowaemployerlaw.com). The new blog provides general information and insight on legal developments of interest to Iowa employers and other employment law attorneys.

I recently blogged about social media and the hiring process on the Iowa Employer Law Blog. The first post, Social Media and the Hiring Process, Part I:  Benefits & Risks, was published on April 15.  Social Media and the Hiring Process, Part II:  Policy Making was published on April 21.

The Dickinson employment and labor law practice group is one of Iowa's largest and most acclaimed, with nine attorneys, five of whom practice primarily in employment law. The group is also one of only three such practice groups in Iowa to earn a "Band 1" ranking in the Labor and Employment area in the most recent edition of Chambers USA:  America's Leading Lawyers for Business. 

Just in case you haven't noticed via other linking on my blog, one of those Dickinson attorneys who practices primarily in employment law with the firm is yours truly.  (Note that this may be the kind of "material connection" that should be disclosed pursuant to the FTC endorsement guidelines I discussed on May 3, 2010, Potential Employer Liability for Employee Endorsements Under FTC Guidelines.)

Potential Employer Liability for Employee Endorsements Under FTC Guidelines

You may recall my earlier post, "FTC to Require Bloggers to Disclose Payments or Freebies for Endorsements," discussing the first update since 1980 to the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising. That earlier post focused primarily on the guide's requirement that bloggers disclose any payments or in-kind donations (i.e., freebies) received in exchange for reviewing a product or service. But remember these new guidelines require disclosures of any "material connections" between endorsers and the advertised companies (i.e., connections between the endorser and endorsee). Material connections may arise as a result of some relationship other than just payment or free products directly in exchange for a positive review. For example, under the new guides, an employer could be liable for online communications by its employee if the employee touts a product or service offered by his employer, but fails to make clear he works for the company he's promoting or "endorsing."  The guidelines include the following example (Example 8 in the final rule):

An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer’s product. Knowledge of this poster’s employment likely would affect the weight or credibility of her endorsement. Therefore, the poster should clearly and conspicuously disclose her relationship to the manufacturer to members and readers of the message board.

It seems the new guides could potentially impose liability on employers for things their employees say online, even if the employer did not actually know those things were being said. The Commission seems to recognize that companies do not have control over all employee conduct. However, the FTC suggests that an employer may protect itself from liability if the employer has an appropriate policy governing social media participation by employees, clearly articulates that policy to employees, and consistently enforces that policy. The FTC explains:

With respect to Example 8 [laid out above], one commenter asserted that if the employer has instituted policies and practices concerning "social media participation" by its employees, and the employee fails to comply with such policies and practices, the employer should not be subject to liability. The Commission agrees that the establishment of appropriate procedures would warrant consideration in its decision as to whether law enforcement action would be an appropriate use of agency resources given the facts set forth in Example 8. Indeed, although the Commission has brought law enforcement actions against companies whose failure to establish or maintain appropriate internal procedures resulted in consumer injury, it is not aware of any instance in which an enforcement action was brought against a company for the actions of a single "rogue" employee who violated established company policy that adequately covered the conduct in question.

In sum, employees (as well as business owners or others with a material connection to a company) who use social media to endorse a product or service offered by their company should notify readers of their connection with the business they are talking about, and employers should implement or update social media policies to take into account the FTC guidelines.