July 2014

By: James B. Sherman, Esq.

A 50-year-old employee who was discharged by his employer sued, alleging age discrimination under the Minnesota Human Rights Act (MHRA) and tacking on an additional claim for invasion of privacy for good measure. Apparently, the only basis for the employee’s age claim was that he was 50, so this claim was easily dismissed on summary judgment. However, the court refused to dismiss the invasion of privacy claim. That particular claim alleged “appropriation” of the plaintiff’s name or likeness (one of three forms of invasion of privacy recognized in Minnesota). Specifically, the employee alleged that the employer failed to update a reference on its website that described the employee as a “principal” of the company, following his termination. The court recognized that an employer’s continued use of a former employee’s picture, name, etc. on its website or on Facebook or social media, etc. without authorization, could support an invasion of privacy claim.

A claim of unlawful appropriation of one’s name or likeness may be based on another person’s intentional use, without authorization, of the name or identity – including pictures – of another. The court in this case ultimately reassessed this claim and dismissed it before trial because there was no evidence that the defendant employer intentionally appropriated the employee’s name for use on its website following his termination. The employee admitted that the employer was authorized to use his name on its website while he was an employee of the company and there was no evidence the employer acted intentionally to use the name following the plaintiff’s termination. Left unanswered by this decision was whether or not an employer could be said to be intentionally appropriating the name, picture/likeness, etc. of a former employee once he or she demanded that the employer remove such items from the company website, Facebook page, etc. Rather than finding out (the hard way) through defending a lawsuit, employers are well advised to act proactively by removing all references, pictures, etc. regarding employees who are no longer employed, unless they give their written consent. One more termination checklist item to add to final pay, COBRA notice, references, etc.

Questions? Contact the knowledgeable attorneys in Wessels Sherman’s Minnesota office at (952) 746-1700.