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By Porter Wells
A former death investigator for the New Orleans coroner’s office won’t get a trial on her claims that she was wrongfully fired for complaining on Facebook about unpaid overtime hours.
As social media use balloons, so do problems for workers who use it while off duty. In March 2017, the U.S. Court of Appeals for the Fourth Circuit ruled that a fire department chief fired after making gun control comments on Facebook couldn’t claim First Amendment retaliation protections because the department’s interests in efficiency, safety, and avoiding workplace disruptions outweighed his free speech interest.
Death investigator Jennifer Trigueros had to go out to investigate a fatality on New Year’s Eve 2016 after her shift had ended, according to her lawsuit. Trigueros then logged onto Facebook and posted a complaint about her co-workers and her lack of overtime pay. The coroner’s office fired her on January 9, 2017, because of the post.
In the lawsuit, filed in the U.S. District Court for the Eastern District of Louisiana, Trigueros claimed that she should have received overtime pay and that her employer unlawfully retaliated against her for the Facebook post.
Judge Eldon Fallon said that while the post was indeed a complaint, “it was not a complaint directed in any way at her employer.” Trigueros also hadn’t asserted her right to overtime pay and asked for the protection of that right, Fallon said. Instead, the complaint “was focused on the unfair and/or inconsiderate behavior of a coworker,” Fallon said.
The Fair Labor Standards Act guarantees overtime pay at a rate of time-and-a-half for jobs classified as nonexempt under the act. Workers are protected from retaliation if they make complaints about their entitlement to overtime pay. But those complaints have to be directed to their employer to protect them from retaliation under the FLSA, not posted to a “general audience” of “friends and acquaintances,” Fallon said.
Attorneys for the parties didn’t immediately respond to Bloomberg Law’s requests for comment.
Trigueros was represented by the Peragine Law Firm LLC in Covington, La. The City of New Orleans was represented by the City Attorney’s Office.
The case is Trigueros v. New Orleans City, 2018 BL 183305, E.D. La., No. 2:17-10960, opinion published 5/23/18.
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