Two 2022 cases—both won by employers—demonstrate the limits of free speech at private sector employers. (Public employees have some First Amendment rights at work, but private sector workers do not.)
Scott Clark worked for Jerry Hoffman and his company for about 18 months. After Hoffman fired Clark, Clark started a competing business. Hoffman sued, claiming that Clark had violated his noncompete agreement, had taken confidential information and trade secrets from Hoffman’s business, and had defamed Hoffman and his company on Facebook and other social media. At trial, the jury awarded Hoffman and his company $10.7 million in damages for libel, extortion, and breach of contract. More than $200,000 in attorney fees were awarded, too.
Here’s how the state Supreme Court described Clark’s conduct:
[O]ver a period of years. Scott Clark used five different Facebook accounts, two under aliases. Clark disseminated his false statements over social media and podcasts to tens of thousands of people. He said that Hoffmann was dishonest and engaged in bribery. He falsely reported that Hoffmann knowingly sold dangerous products out of greed. Clark engaged in bad faith conduct, threatening repeatedly to harm Hoffmann unless Hoffmann paid him off. Clark posted a video depicting Hoffmann as Adolf Hitler.
While Clark’s liability was affirmed, the court cut back the damages, since the jury improperly based its award on the company’s lost revenue, instead of lost profits. Hoffman and his company have the choice of accepting the reduced verdict of $2,958,500 (plus attorney’s fees) or taking their chances at new trial on damages.
Hoffmann v. Clark, 2022 Iowa Sup. LEXIS 77 (Iowa, June 7, 2022)
In the second case, Heather McVey, a nurse who was corporate director of customer relations for a health care system—and identified herself as such on her personal Facebook page—was fired after she posted comments there about the Black Lives Matter movement that the employer’s lawyer described in court as “a clearly racist dog whistle post”.
McVey sued, claiming that firing her for expressing her views violated public policy, but the trial and appellate courts both disagreed, and upheld her termination.
McVey v. AtlantiCare Med. Sys., 2022 N.J. Super. LEXIS 70 (App. Div. May 20, 2022)
What this means to you:
We all value our ability to freely express ourselves, but, as the McVey court said, employers have the right to promote a respectful, diverse, and inclusive environment, both online and in person.
E-mail, instant messaging, social networks, and blogs can be a gold mine—or a land mine! Electronic files have been used as evidence to prove claims of harassment, discrimination, insider trading, accounting fraud, whistleblower claims, trade secret violations and more. In our E-Mail = Evidence webinar, your employees will learn to avoid those problems.
To book this webinar or for more information, call us at 800-458-2778 or by emailing us.
Updated 07-12-2022
Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.
