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As ‘Judge’ of Disputes, HR Needs to Defend Neutral Role

By Allen Smith  2/3/2014
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HR professionals need to make sure their online “friendships” aren’t undermining their neutral role in resolving workplace disputes.

An emerging body of law about when judges should or should not “friend” litigants may be food for thought for HR practitioners, who often act as arbiter when conducting internal investigations. Though just family- and criminal-law decisions, these cases suggest that someone may point a finger at an HR professional and maintain that she isn’t neutral in an investigation because she friended the person being investigated, one of the witnesses or the complainant.

“I’m not aware of” a court that applied that rationale under any law, said Philip Miles III, an attorney at McQuaide Blasko in State College, Pa., in an interview with SHRM Online. But he added, “From common sense, you could make the argument that an employer friending someone may appear as having bias” in a workplace investigation.

Retaliation for Not Friending

Consider a recent family-law case. On Jan. 24, 2014, a Florida District Court of Appeal disqualified a trial judge in her divorce case because she sent the petitioner, Sandra Chace, a Facebook “friend” request. Later, the court entered a final judgment dissolving the marriage, allegedly attributing most of the marital debt to the petitioner and providing the respondent with a disproportionately excessive alimony award. Chace claimed that the judge retaliated against her for not accepting the friend request.

“The ‘friend’ request placed the litigant between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the ‘friend’ request,” the court said, quashing the order denying the motion to disqualify the judge. “The appearance of partiality must be avoided. It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case” (Chace v. Loisel, No. 5D13-4449 (Fla. Dist. Ct. App. 2014)).

Ethics Opinions

The Florida Supreme Court Judicial Ethics Advisory Committee similarly states that judges may not add lawyers who may appear before them as friends on a social networking site nor permit the lawyers to add them as their friend.

Oklahoma Judicial Ethics Opinion 2001-3 goes further and forbids judges from adding as friends on social media accounts court staff, law enforcement officers, social workers, attorneys and others who may appear in their court.

Friended Prosecutor

And in the criminal context, a defendant succeeded in disqualifying a judge who the defendant said was a Facebook friend of the prosecutor’s.

Pierre Domville, the petitioner, maintained that the online friendship between the judge and the prosecutor led him to believe that the judge could not be fair and impartial. Domville explained that he was a Facebook user and that his friends consisted “only of his closest friends and associates, persons whom he could not perceive with anything but favor, loyalty and partiality.”

The District Court of Appeal of Florida concluded: “A judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.”

The court reversed the order denying disqualification of the trial judge, stating that “Domville has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial” (Domville v. Florida (Fla. Dist. Ct. App. 2013)).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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