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Legal risks making an employee’s termination public

Legal News Reporter

Published: February 3, 2014

No employee wants to hear that he or she is being let go, whether for cause or because of a layoff, but imagine the horror of finding out that all the details were made public by the employer via a social media vehicle.

That’s exactly what happened to several employees at the Dallas Police Department at the end of December when Chief David Brown tweeted the reasons behind their firings.

The story was posted on the NBC 5 Dallas-Fort Worth website (nbcdfw.com). In one instance it said the police chief tweeted, “SC Amy Wilburn, #8111, was terminated for firing her weapon upon an unarmed person without fear or justification. Kelvion Walker, the 19-year-old shot earlier this month, is suing.”

In another case the story said the chief tweeted that 911 Call Taker Moises Limon “was terminated today for driving while under the influence and not reporting his arrest to his supervisor.” In addition to the firings Brown reportedly also tweeted the details of another officer’s demotion.

Although the police chief’s tweets drew praise from some like the attorney for the plaintiff suing in connection with the Wilburn incident, they also received harsh criticism from the president of the Dallas Police Association and officers.

As Vorys, Sater, Seymour and Pease Labor and Employment Partner Thomas Crookes explains, incidents like this one may generate a lot of media attention but they also put the employer at risk for lawsuits.

“Just because the type of media is changing does not mean common sense guidelines go out the window,” said Crookes. “Would an employer take out an ad in the newspaper or post a billboard containing the same information? The concept is different but the rules are the same.

“There are certain ‘best practices’ that employers should adhere to when it comes to confidential items like performance reviews, disciplinary actions, layoffs and firings to ensure ‘good faith’ relationships with employees and shield themselves from defamation claims.”

He said if termination information was made public in a state that has privacy statutes, the employee could file a claim for violation of the statute. Ohio currently does not have such a statute, he said. However Crookes said an employee could sue for defamation of character should the information publicized about the termination contain false information.

“For example in the Dallas case, let’s say it turns out the 911 operator was ‘not’ under the influence or maybe the operator was under the influence but ‘did’ report the arrest to his supervisor, then incorrect facts have been made public,” he said. “In both instances the operator could claim he has been defamed and file a suit.”

If you are going to “go public” with employee discipline or termination decisions Crookes said, “you had better be exact about the facts. Terminating the employment relationship for ‘firing her weapon upon an unarmed person without fear or justification,’ as in the chief’s Wilburn tweet, could open the department up to having to prove facts that are difficult to prove.

“For instance was the employee fearful? Going public with these kinds of statements also can be problematic if they interfere with an internal investigation. Making public statements about the events may give rise to third-party actions. Here the public statements may create an inference that the victim was shot as a result of some departmental wrongdoing.”

Beyond the potential for lawsuits, Crookes said actions like the one in Dallas can harm employee morale and make it difficult for a company to attract the “best and brightest.”

He said, “People may find the policy of making termination information public quite objectionable. If I am a prospective candidate why would I want to work for a company that publicizes the personal information of those it disciplines and terminates?”

There is nothing wrong with a company announcing a massive layoff without specifics, he said. If companies are thinking about following the Dallas example Crookes suggested they first ask this simple question:

“What am I gaining by making this information public? I think if they give this some thought they would realize that just because technology allows it does not mean they should do it. In the end I don’t think they will realize any advantage.”