Fired Over Facebook?

 

As social media use becomes more common in the workplace, new questions arise. Obviously some employees represent their companies on business-related social media accounts. But the big question is what happens when employees make the company look bad by posting questionable content on their personal Facebook or Twitter accounts? It goes without saying that employees who harm their company’s reputation on social media risk being fired. But the courts have ruled there are only certain circumstances in which employees can be let go for social media screw-ups. Which means employers should understand the rules before taking disciplinary action.

The primary principle to remember when dealing with social media is that employees have the right to complain amongst themselves, about their employers, and/or their working conditions. This now extends to social media posts. If a worker posts a non-flattering picture of his or her workplace, or posts a status update complaining about work policies, in most cases the employee cannot be fired.

For example, in 2011, an employee at Hispanics United of Buffalo complained on Facebook that a fellow employee wasn’t doing her job. That caused several other employees to respond to the post, using profanity and making disparaging remarks about the employee in question. When the subject of the rant complained about the posts, Hispanics United fired all the employees who participated in the discussion for cyber-bullying. However, an administrative judge for the National Labor Relations Board ordered the fired employees be reinstated on the grounds they had the right to complain about their workplace, including complaining about fellow employees.

In addition to considering whether employee postings are protected under the right to complain standard, you also need to ensure their other rights are not violated before taking disciplinary action.

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If employees have the right to union representation or to privacy, violating these rights can render your case unreasonable even if the employee’s posts were not protected. In 2010, an employee of an ambulance company was fired for complaining about her supervisor on her personal Facebook page. This may or may not have been an example of the right to complain, but the NLRB didn’t examine that issue because the woman had requested help from a union representative earlier that day and did not get it. Thus, an administrative judge dismissed the case on the grounds that the woman’s right to union representation when facing disciplinary action was denied.

As these cases demonstrate, it’s difficult to fire an employee for social media screw-ups. Employers want to do it because employees’ behavior can negatively impact company morale and the company’s reputation in the online world, but it’s risky because most social media posts are protected under the right to complain statute. If your employee says something defamatory about the company — i.e. something false that makes the company look bad — you may have grounds for libel and/or be able to dismiss the employee. But you probably won’t be able to terminate employment for social media screw-ups.

Contact your attorney immediately to find out what your options are if an employee violates your company’s Internet policy by posting negative information about the company on a social media site.

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