The lesson of the overly gung-ho employee

“After I graduated college with a degree in media and marketing, I was hired as a claims adjuster trainee by a Midwestbased property insurance company. The training was great and I just knew that I was working for a company that was fair and took good care of its policyholders — when they had a loss — or people who had a claim against them as well,” “Jimmy” wrote.

“I say this because we were put in touch with people who had gone through auto accidents, wildfires, tornados and other horrible events, all of whom had only praise for the company’s handling of their claim. This motivated me to interview some of them and put together a highly positive YouTube video. I did not tell anyone at the company I was doing this. It was meant to be a surprise.

“Before uploading it to YouTube, I showed it to my boss, but instead of being happy and proud of me, he was extremely upset. With permission, I recorded what he said.” Jimmy played the recording: “Don’t you dare post this! I know you were well-intentioned, but this creates the basis for a policyholder or some other person who suffers a loss, but does not receive what they felt entitled to, to sue us, arguing that your video falsely induced them to purchase our product or that we engage in bad faith claims practices.

“This was foolish to accomplish without asking for our permission, and you took a huge risk. Your initiative is dangerous. Insurance claims are by the book and your creativity is best applied to some other occupation. Do not ever list us as a former employer.”

“Mr. Beaver, I never posted the video. Could I sue them for wrongful termination?”

Jimmy sent me the video, which I found to be professionally done.

An important question

After I ran Jimmy’s situation by Southern California-based employment attorney Jay Rosenlieb, he phrased the legal issue this way:

“Can an employee be terminated for wanting to post something on YouTube that is supportive of the organization without their approval?”

Before his answer, through the eyes of a former insurance company attorney, let’s take a look at some the of the propaganda in the ads we see on television which create the illusion of truly caring for their insured and the public.

One word you’ll never hear

Randall K. Edwards is an attorney based in Salt Lake City, Utah, whose professional experience affords a great perspective on this interesting fact situation. Edwards has worked as an insurance defense lawyer, and later, representing plaintiffs, sometimes against their own carriers.

“All companies put on a dog and pony show in their advertising trying to prove that they live up to their motto: “Like a good neighbor, State Farm is there; You’re In Good Hands with Allstate; We’re Farmers; We Know a Thing or Two Because We’ve Seen a Thing or Two; and on it goes.

“But they will never tell their own insured or the public, ‘ We will treat you fairly.’ The last thing they want is to actually be out there making a representation that could come back to haunt them.

“A lot of their advertising is pure fluff that looks impressive until you read the policy. To expect them to be true to what their ads suggest is asking too much. If Jimmy’s video did make it to YouTube, this could easily have created a legal nightmare for his employer,” he believes.

Avoid conflict with employer

“In most states,” Rosenlieb points out, “when the employee’s communication or social media post is not about the terms and conditions of employment — which is protected speech under the National Labor Relations Act — it is clear that an employee cannot publicly act in a manner that is in conflict with the best interests of the employer.

“Here, the employer’s position is sound, as Jimmy’s conduct could interfere with its marketing strategy.

I asked, “Is there a legal difference between a testimonial put online by a customer and one from an employee?”

Rosenlieb replied, “When an employee puts a testimonial up on social media about his or her employer, the public might consider that as prompted by the employer. And if it contains or implies anything potentially untrue, it could be consider as a misleading statement.”

So, what would his advice be to a new, really gung-ho employee?

“You might have the best ideas in the world how to promote your employer, but be aware their marketing strategies might not align with your ideas. Find out in advance their position on employees posting anything online before you actually do.”