How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask LawHelpNow Your Own Question
LawHelpNow, Attorney/Lawyer
Category: Employment Law
Satisfied Customers: 7639
Experience:  Relax. Let's work together. Practical solutions.
Type Your Employment Law Question Here...
LawHelpNow is online now
A new question is answered every 9 seconds

I am a 27 year old male that has worked for a privately owned

Customer Question

I am a 27 year old male that has worked for a privately owned company in Louisville, KY for the last 5.5 years as a salaried employee. I am the manager of communications and oversee the IT infrastructure for the entire company. A year ago I was running bandwidth tests and discovered that the executive Vice President of the company had been viewing inappropriate sites almost daily. I reported the issue to our CEO/owner who ultimately decided to dismiss the employee. The owner assured me no one would find out about my involvement because I feared it would be detrimental to my career. A few months later my former boss who was a direct report of the dismissed exec V.P. began making changes that directly impacted my position within the company. He started by moving the Exec V.P.'s son into the IT dept, removing my access to our Internet filtering system (the system that I had used to monitor bandwidth and ultimately discovered what the exec V.P was doing) and also removing my access to our firewall. He conspired with my current boss to say that those systems fell outside the realm of what I was responsible for. It is the only Cisco system that they removed my access to as I am responsible for the Cisco network. I had also told my former boss two years ago when we were putting in a VoIP phone system at a remote branch that we were violating FCC 911 laws in KY by not installing a true system and that we were creating safety issues because if employees at this particular branch would try to call 911 in an emergency they would not be able to. He told me that those laws do not apply to companies ... But they do and so I saved the emails in case anything should happen, though I did not notify OSHA. I have since told my new boss about the issue and expressed concern that we need to remedy it before something happens and allows an employee or their family to sue us. Over the summer several things have occurred to make my employment there a hostile work environment. I am constantly stressed, lost sleep, and have gone to my doctor to get on medication. I have expressed concern to my boss who is also the VP of our HR department that I feel I am being retaliated against because of my actions and that this is becoming hostile. I also fear for my safety in some sense because of how erratic the other manager is acting by making rash decisions that affect my performance. I have never received a write up, and have outstanding performance reviews. I have written a letter expressing my concerns about the issue, signed it and had it added to my employee file so that at least I had it documented. A few days ago they changed the lock codes to one of the buildings I have access to and did not notify me. After work I wrote on Facebook which I have set to private that "the battle at work continues and today I got locked out of the data room. I guess tomorrow they will try to lock me out of my own office since he is the most pretentious prick I know". I did not include any company information, did not specify names, and it was set to only be seen by my friends. I opted to delete the update a few hours later but again this was all done after work hours not while I was at work. I found out today that someone in another department saw my status and may have told someone in my department. I may just be being paranoid but I would like to know my rights under freedom of speech since the company has no policy about social networking, since it was posted outside business hours, as well as did not specify a company or person. I also would like to know what my rights are in regards XXXXX XXXXX even though I am not in a protected class, but it is creating a hostile work environment and to date HR has done nothing about it. Several people in the department have expressed concern for me including a consultant that we have hired. He stated that the company is slowly working me into a heart attack. The last person that this particular manager acted this way to ended up getting laid off under the pretense that his position was being discontinued. I am fearful that the company will try to do that to me.
Submitted: 4 years ago.
Category: Employment Law
Expert:  LawHelpNow replied 4 years ago.
Hello Cory,
My name isXXXXX'm a licensed attorney. Glad to try and help out.
Sure sorry for the circumstances, truly. My heart goes out to you.
Here's how this works. In a certain sense, you are in a protected class, as follows. Anyone, without regard to factors such as race, sex, religion and so forth, is lawfully entitled to a workplace free from hostility, which along with sexual harassment is actually a form of unlawful discrimination. Now, here's the tricky part, however. We're talking about a really high standard here. For a rough analogy, think along lines of saying something rude...or quite inappropriate...contrasted with something really rude. So, then, what does cross the line from rude yet legally acceptable conduct into actionable and unlawful behavior? Well, that definition comes from the U.S. Equal Employment Opportunity Commission, as follows. Check out this document, if you will, which is still controlling although it bears a rather old date:
Notice 915.002
If you don't have the time or inclination to read the whole thing, here's the botXXXXX XXXXXne. To meet the legal definition of "hostile", we're talking an environment going well above what most of us would consider to be ridiculous or even unbearable. To borrow a civil law analogy, there's a tort called intentional infliction of emotional distress. Many folks think it applies to casual situations, but it's actually incredibly difficult to prove. We're talking suffering some outrageous tragedy, perhaps witnessing the death of a loved one (for example), having to be placed on sedatives and under psychiatric care, and so forth. Likewise, in the labor and employment law context a very high hurdle exists to make out a successful hostile workplace case. That being said, you certainly could file a complaint (free of charge). You have six months from the last incident in which to file. Everything you need is provided here for free: Filing A Charge.

Now, having carefully considered everything you're related, in all candor and sincerity I don't see a viable case here. Rather, I see a sophisticated corporate employer who is aware of the law, perhaps walks too fine of a line, but manages not to cross it. To put it bluntly, an employer can make an employee's life pretty darn miserable and get away with it.
Finally, your query about the First Amendment is certainly logical and makes sense. It boils down to a rather simple situation. Any documents (i.e. employment contract addressing social media) govern, which is obviously not the case here. So, that means you absolutely enjoy a Free Speech right pursuant to the United States Constitution. But, likewise, your employer enjoys the right to discipline you for engaging in disparaging or defamatory speech. It sounds like it's an academic matter at the moment, without knowing for certain whether anyone read and reported your comments, but there are certainly cases upholding terminations for such offenses. Again, everything would have to be taken into consideration, but honestly what I see here is what I've seen so many times (and personally experienced) in the corporate workplace. I hate to say so, but I think you're facing a very tough dilemma of weighing the pros and cons of staying versus leaving, how much "toxicity" you can continue to stomach stacked up against, of course, your desire for secure employment.

If you have a follow-up question or need clarification, please just say the word by using "reply" to reach me. We're being hit with what sounds like the makings of a serious rain and wind storm right now, so I'll probably shut down for a while. You have my word, though, that I'll be sure to check back for any updated word from you when I again return to the online venue.
I truly hope all works out for you.
Take care,
Ben, J.D.
Customer: replied 4 years ago.
Thank you for your response it was very helpful. I do have one other question regarding the Facebook allegation. Do they have to prove that the post existed since I deleted it and unless someone took a screenshot (which I doubt anyone did) in order to terminate me? We also have no social media clause in our handbook, and I think they would have a hard time proving defamation since I did not mention the company name, nor did I mention the employee. I also believe that if they did try to terminate me they would opt to lay me off with a severance and make me sign an NDA. Is this something I have to sign immediately or do I have the option to consult with an attorney prior to signing. I know the last gentleman they did this to did not sign immediately. He was of a protected class due to him being over 40, and since this is obviously a trend since he was having the same issues as me would us combining forces give us any leverage? It just seems the company is using layoffs as a way to get around employment laws.
Expert:  LawHelpNow replied 4 years ago.
Hi there Cory,

Thanks for writing back...great to hear from you!

You're quite pleasure entirely.

Thank you for taking the time to write back and let me know my answer was helpful, which means more to me than I can say.
Without any proof, termination (or otherwise disciplining) you based on the social media post seems tenuous at best. And, I can assure you they can't access the now deleted post without a subpoena, which they can't get, so that's not even a worry. But, on the flip side, there's no "burden of proof" as in terms of say a criminal prosecution or a civil case. That's on account of the harsh legal doctrine called employment-at-will, with which I'm sure you're familiar, meaning they can terminate you at any time, for any lawful reason, without prior notice (unless otherwise required by a written employment contract or collective bargaining union agreement). And yes, as to your point about defamation, very insightful. We're all entitled to our opinions. Just for a silly example, there's nothing at all defamatory about saying "I feel like I hate my job" or "Sometimes work just sucks", but of course there's a huge problem with (falsely) saying "My boss is a registered sex offender" or "My job makes me commit illegal deeds".
All in all, you have a solid work history and outstanding record. Unless the company wants to lose such valuable talent, I would suspect it will eventually blow over. That's just my gut instinct, and of course you know best.

Hang in there and know I'm holding a good thought for you!

Kind regards,

Ben, J.D.
LawHelpNow and other Employment Law Specialists are ready to help you
Customer: replied 4 years ago.
Thank you for all your help.
Customer: replied 4 years ago.
Sorry to be beating a dead horse on this, but I have been reading up on IIED cases and I found a case where the court upheld the IIED because they found that it was motivated by the reporting of illegality, or irregularity which constituted extreme or outrageous conduct. Vasarhelyi v. New School for Social Reaearch. I read through emails today and put together a time line of when all this started and it coincides with my decision to report ethical activity by an executive. I have reported the hostility to both our HR manager and to our V.P. of HR which is my boss and to date they have not met with me on my claims, though our handbook states that we handle incidents like this promptly. I also wrote a letter a few months back explaining that I felt I was being retaliated against because of my involvement and I signed and dated it and had HR place it into my file. I guess my question is what is the legal definition of an irregularity because what I reported on the exec was not illegal. However what I reported on the phone system probably would be considered illegal because it deliberately creates unsafe work environments.
Expert:  LawHelpNow replied 4 years ago.
Hey Cory,
Not at all...I'm sure I would be exploring every avenue were I in your shoes. I can sense you're an intelligent person, so I'm not at all surprised you would raise the issue of the tort of intentional infliction of emotional distress. That sort of civil litigation is right up my alley, so I can speak from experience here. It's the most difficult intentional tort to prove up, without a doubt. It sounds logical in many cases, but most often it doesn't work out on account of the extremely high hurdle of proving each of the required elements by a preponderance of the evidence. If you want to read a really excellent, definitive analysis covering all of this, I would recommend checking out (especially page six of nine) of the following opinion:
Kenney v. Arnold
The classic case would runs along truly and extremely outrageous and egregious lines. I'm talking something like ending up under psychiatric care and/or suffering a heart attack after watching someone kill your loved one. It's not always that extreme, but nevertheless it's a very, very high hurdle to jump.
I mention all of this certainly not intending to be discouraging but rather just so you have your eyes open. The bottom line is the chances of prevailing on such a claim through litigation and appeal, and especially against a corporate defendant with its resources and legal team, are incredibly, exceptionally slim. I can't use the word "impossible", but I'll tell you it's darn close.
Best regards,

Ben, J.D.
Customer: replied 4 years ago.
What are the required elements?
Expert:  LawHelpNow replied 4 years ago.
Hi again Cory,

Sure, gladly.
Here they are, as outlined on pages five (physical element requirement) and six (four required elements) of the nine page opinion:
The Kentucky Supreme Court has explained that “an action will not lie for fright, shock or mental anguish which is unaccompanied by physical contact or injury. The reason being that such damages are too remote and speculative, are easily simulated and difficult to disprove, and there is no standard by which they can be justly measured.” Deutsch v. Shein, 597 S.W.2d 141, 145-46 (Ky. 1980) (citing Morgan v. Hightower's Adm'r, 291 Ky. 58, 59-60, 163 S.W.2d 21, 22 (1942)). Thus, “it is necessary that the damages for mental distress sought to be recovered be related to, and the direct and natural result of” some minimal amount of physical contact or injury. Id. at 146.
To prevail on a claim of intentional infliction of emotional distress (IIED), a claimant must prove the following elements: 1) the wrongdoer's conduct must be intentional or reckless; 2) the conduct must be outrageous and intolerable in that it offends against the generally accepted standards of decency and morality; 3) there must be a causal connection between the wrongdoer's conduct and the emotional distress; and 4) the emotional distress must be severe. Kroger Co. v. Willgruber, 920 S.W.2d 61, 65 (Ky. 1996) (citing Craft v. Rice, 671 S.W.2d 247, 249 (Ky. 1984)).
Kind regards,

Ben, J.D.
Expert:  LawHelpNow replied 4 years ago.
Hello Cory,

I enjoyed working with you recently.

How are things going?

Is there anything else I can do to help?

Please just let me know.


Ben, J.D.