Human Resources News & Insights

Manager’s poor judgment leads to reversal of termination of employee — for poor judgment

Lord knows we’ve heard enough stories about how employees misbehave on social media. Now comes the tale of the manager who set up a fake Facebook account to spy on what one of his underlings was saying on a private social media page.  

Here’s the best part: After he read the not-very-complimentary things the employee had posted on his private Facebook wall, the supervisor fired the worker — for “poor judgment.”

The case involved an employee of the U.S. Customs Border Patrol, Earl Trapp.

Trapp’s Facebook account setting was “private.” But when word got around that Trapp was making “inappropriate” comments in his Facebook posts, Supervisory Agent Michael Bodes apparently thought he’d come up with a way around that privacy firewall.

According to the written opinion of the arbitrator who heard Trapp’s case, Bodes created a Facebook account for an imaginary person named “Layla Shine.” Bodes, acting as Layla, sent Trapp a “friend request,” which included a photo of a woman.

Trapp accepted the friend request; he later said he thought Layla Shine was somebody he’d met in the past.

You know what happened next. Bodes looked at Trapp’s Facebook postings, scraped them off into a Word document and used them as the basis for terminating Trapp for using “poor judgment.”

Manager violated federal law: Arbitrator

Arbitrator Edward Scholtz decided that Bodes’ actions violated the federal Stored Communications Act. He also noted that Bodes hadn’t checked to determine whether his false Facebook page ploy was legal or appropriate.

The arbitrator restored Trapp’s job and awarded him back pay for the time he would have been working had he not been improperly dismissed.

Philip Gordon and Sebastien Chilco, writing on Littler Mendelson’s Workplace Privacy Counsel blog, had this to say about the case:

Although [Trapp’s] case is not binding on courts or arbitrators, it illustrates the challenges employers face in the digital era. An employer may have many valid reasons to monitor employees’ online conduct. However, monitoring must be conducted legally; otherwise employer monitoring could expose the organization to legal liability. For example, employers should not use false pretenses to gain access to an employee’s restricted social media content. Using false pretenses exposes the employer to liability.

The case is Trapp v. DHS (link courtesy of Littler Mendelson).

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