Federal court rejects dismissal of retaliation complaint involving social media post

Riley Bockus is a former employee of the company who allegedly threatened to contact the “labor board” if his then employer would not pay him 1.5 hours of overtime he was owed by the employer. Bevins allegedly told Bockus he wasn’t happy with the employee’s threat to call the labor board, and Bockus was terminated.

Bockus contacted the US DOL who initiated an investigation and ultimately settled with the employer in the amount of $17,000 in back wages and liquidated damages to 17 current and former employees, and an additional $3,310 in back pay and $25,000 in punitive damages to Bockus due to his alleged unlawful termination. The settlement agreement also contained a provision prohibiting retaliation.

On May 31, 2023, the DOL issued a press release, not naming Bockus, but describing that Bevins & Son terminated a worker for “asking to be paid in compliance with the FLSA,” and the DOL described the settlement generally as well as the payments. A local news station aired a segment about the settlement and press release.

The treasurer/secretary Tracy Creamer then posted the following on Facebook:

“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.”

According to the case, multiple people responded to Creamer’s Facebook post, including one comment that included a screenshot of a Google search showing that Bockus had engaged in criminal activity. Defendant Creamer responded “point made” to this comment.

Bevins himself also responded to the comment in the post saying, in part, that “most of that money came back to me!”

The DOL sued for retaliation based on the social media posts. In response, the defendants claimed their speech was constitutionally protected and asked the court to dismiss the lawsuit.

The court disagreed, and the case will proceed to litigation.

According to federal law, an employee who alleges retaliation for protected activity under the FLSA must show that he engaged in protected activity (such as filing a complaint with the DOL), that an employment action occurred disadvantageous to the employee and there was a causal connection between the protected activity and the employment action. Upon this showing, the defendant must articulate a legitimate, non-retaliatory reason for the action, after which the burden is on the employee to show pretext. Id.

The court held that the plaintiff met this burden of proof, and that the defendants failed to meet theirs.

The defendants argued that their social media comments were, “an expression of [Defendants’] sentiments and grievances concerning” the WHD investigation and are therefore protected by the First Amendment.

On this point, the court held, “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 FLSA.” The court also held that this rule applies to current and former employees. The court cited precedent that “employers may communicate general and specific views so long as they do not contain a ‘threat of reprisal or force or promise of benefit.’”

The court held, “An employer’s retaliatory speech against an employee that has engaged in protected activity under the FLSA is unprotected if that speech ‘discriminate[s] against any employee because such employee has filed any complaint or caused to be instituted any proceeding under or related to this chapter.’ If the speech is retaliatory under the FLSA, it is not protected by the First Amendment.”

The parties did not dispute that Bockus engaged in protected activity under the FLSA.

The issue was whether the social media post was disadvantageous to the employee. The court held, “[a]n employment action disadvantages an employee if ‘it well might have dissuaded a reasonable worker from making or supporting similar charges.’” This could include impugning someone’s reputation or diminished their future employment prospects.

More information can be found at www.dol.gov.