Written by Jessica Relyea, Esq.
Edited by Brian A. Cafritz, Esq.
Businesses often check a job applicant’s social media sites prior to making an offer of employment. Some companies encourage employees to post about their job on social media as a marketing device to help sell their products or services. Other companies discourage employees from mentioning them for public relations reasons. But with the ever-growing impact and reach of social media, companies need to start asking whether they can be legally liable for what their employee posts, shares, or tweets on social media.
Is a retail store responsible if an associate posts an unflattering picture on Instagram of a customer trying on clothes? Does a restaurant become legally liable if an employee accuses a customer of theft on Facebook? Can a fast-food chain be held responsible if an employee sends out a series of tweets bullying a vendor or coworker?
There is little case law specifically discussing social media liability. However, the answers to the question will likely lie in the scope of employment analysis. In Virginia, an employer may be held vicariously liable for the intentional torts (e.g. defamation, intentional infliction of emotional distress) of its employee only if the tort was committed within the scope of the employee’s employment. Tri-State Coach Corp. v. Walsh, 188 Va. 299, 49 S.E.2d 363 (1948); Oberbroeckling v. Lyle, 234 Va. 373, 381 362 S.E.2d 682, 687 (1987). When an employer-employee relationship has been established, the employer has the burden of proving—by a preponderance of the evidence— that the employee was not acting within the scope of his employment when committing the intentional tort. Broaddus v. Standard Drug Co., 211 Va. 645, 653-54, 179 S.E.2d 497, 504 (1971). Some of the facts to be considered to determine whether the employee’s tort will be deemed to occur “within the course of employment” are whether (1) the act was expressly or implied directed by the employer; (2) the act was in the ordinary course of business or naturally incident to the employer’s business; (3) the act was performed, although mistakenly, or ill-advisedly, with the intent to further the employer’s interest; and (4) the act was performed from some impulse or emotion that was the natural consequence of an attempt to do the employer’s business. See Commercial Business Sys. v. Bellsouth Servs., 249 Va. 39, 453 S.E.2d 261 (1995); Kensington Assoc. v. West, 234 VA. 430, 362 S.E.2d 900 (1987); Walsh, 188 Va. at 299, 49 S.E.2d at 363.
When determining whether an employee’s act falls within the scope of employment, the trier of fact will look at whether the social media post was made during work hours, whether the person identified in the post was a customer or co-worker, whether the company encourages employees to post on social media to benefit their brand, what actions the company took after learning of the post, and whether the post was about some aspect of the employee job duties or made in an effort to further the employer’s business. Consistent with this thinking, the defense will want to show that the post provided no benefit to the company, and it was purely motivated by personal will. Above all else, where the employee was when he or she made the post is a major factor. A post made during work hours while on company property significantly increases the likelihood of a scope of employment finding. Would an employee’s post made from home after work one day about an annoying customer fall within the scope of employment? Probably not. On the other hand, would an employee’s post, made from her cell phone during her shift, showing pictures of two different customers in the same dress, with a disparaging statement suggesting one customer looks better than the other be considered in the scope of employment? Probably.
The question can often turn on the narrowest of facts, and the facts are often based on the memory of witnesses, which means they will often contradict. Given this, whether an action was done in the scope of employment cannot be determined until full discovery has been completed, and even then, is often left to a jury to determine. In those scenarios, whether or not a company ultimately becomes liable for the social media post of its employee is not known until the company has engaged in litigation of the matter. Thus, even if a company is found to be not liable, it still comes at a cost. Given this, businesses should consider having comprehensive social media policies that go beyond checking prospective employees’ sites before hiring them, and cover how you want your employees to use, tag, or market the company on their personal accounts.