Companies can face serious legal problems for firing an employee for their social media activity without first determining whether the employee’s speech is protected under federal law. Here’s a recent case where the termination was ultimately deemed lawful:
In response to being reprimanded by her supervisor, the employee updated her Facebook status from her cell phone during her lunch break with a comment that consisted of an expletive and the name of the employer’s store. One of her coworkers “liked” her status. The employee posted a second comment stating that the employer did not appreciate its employees. Although several of the employee’s Facebook friends and relatives commented on the second post, none of her coworker Facebook friends responded. In the following days, the employee informed her coworkers and a supervisor about the incident that prompted her Facebook posts. While these individuals offered their sympathy, none of them indicated that they viewed the incident as a group concern or desired to take further group action. The employee who “liked” the original Facebook post also expressed sympathy, and generally referenced her displeasure with her own job, but they discussed no other work-related issues. The employee was later discharged for her Facebook postings.
The National Labor Relations Board (NLRB) determined that the termination was lawful because the employee’s Facebook postings were merely an expression of an individual gripe. The NLRB reasoned that the employee had no particular audience in mind when she made the posts, the posts contained no language suggesting that she sought to initiate or induce coworkers to engage in group action, and the post did not grow out of a prior discussion about terms and conditions of employment with her coworkers. Although some of her coworkers offered sympathy and indicated some general dissatisfaction with their jobs, the employee’s social media activity was not protected since she did not engage in extended discussions over working conditions or suggest taking further action.
While the employer ultimately won the lawsuit, it still likely spent thousands of dollars hiring an attorney, defending the case, and diverting funds away from its business to commit to legal fees. Had the employer been proactive, it could have avoided this costly and uncertain legal process by implementing a social media policy that teaches its employees about responsible social media use. By having a social media policy in place, the employer could have reduced the likelihood that the employee would post inappropriate comments and therefore mitigate the need for a lawsuit. This leaves us with an important question:
How Can You Manage Employee Social Media Use under Federal Law?
Many companies have disciplined their employees over their social media posts or instituted policies prohibiting certain online activities. But are these employment practices and policies legal? In my next webinar, I will teach you about important labor and employment law issues in the context of social media in the workplace and how to manage employee social media use.
January 22 | 12:00-1:30 est | $150 Live or OnDemand
1.5 Hours of CLE Credits Approved in Florida, Louisiana, South Carolina, and Nevada
Approval Pending in California and Georgia
Social media law attorney, author, professor, and keynote speaker Ethan Wall will:
CEO & Founder of Social Media Law & Order
Ethan teaches social media CLE programs to lawyers, law firms, and legal associations. He can design a one hour, half day, or full day workshop at your office, firm retreat, or conference that will be approved for both ethics and general CLE credit. Learn more about how Ethan can be your social media law keynote speaker at your next conference on topics related to social media and the law.