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Think Twice Before Firing an Employee for Social Media Behavior

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For individuals and businesses, social media can be a great boon — but it can also be destructive. You can't control what a disgruntled customer might say about your business on social media. But what if one of your employees trashes your company online or reveals proprietary information? Can you fire a worker who posts something that embarrasses your business or that's so controversial it draws negative attention to your company? What can you do?

The first and most basic step is to develop a realistic social media policy — with the help of your attorney — that's not too broad or too restrictive and that spells out consequences for those who violate your rules. With a policy in place, be sure to require all employees to read it and acknowledge in writing that they understand the terms. The policy not only puts employees on alert, but provides a framework for disciplinary action.

It's crucial to have the policy be part of your handbook, but you should also back it up with occasional reminders to your workforce to watch what they post.

Concerted Activity on Social Media: "The New Water Cooler"

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The NLRB defines concerted activity as when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action.

Further, the NLRB cites three examples of protected concerted activity:

• Two or more employees addressing their employer about improving their pay.

• Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.

• An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

What Should the Policy Include?

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It's probably wise to avoid getting too detailed in your descriptions of specific unacceptable communications. For one thing, you'll never address every way an employee could damage your reputation via social media. However, a statement like the following isn't overly prescriptive:

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"Although not an exclusive list, some specific examples of prohibited social media conduct include posting commentary, content, or images that are defamatory, pornographic, proprietary, harassing, libelous or that can create a hostile work environment.“

You may want to include a broad statement, such as: "Social media is a public activity and [employer name] employees should not do anything on social media that is inappropriate or harmful to the company, its employees or customers."

Don't Focus Too Much on the Downside

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Your policy shouldn't be entirely negative — that is, only telling employees what they can't say. Doing so risks making employees feel disrespected, and perhaps also disinclined to use social media to say good things about your company.

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"Employees engaging on social media are the best marketing influencers for new products, promotional deals, new locations, etc.," according to Whitney Kasle, a new media marketing expert. Used wisely, your staff can do much to enhance your business reputation on social media and even increase traffic to your business.

While some employers may choose to bar employee use of social media at work, others may be silent on the issue — preferring to let productivity speak for itself. In other words, an employee who spends hours at work posting to Facebook would flunk the productivity test in the same way that an employee who lingers all day in the break room probably would.

Notable Cases

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Let's take a look at what happened in several actual cases where social media postings resulted in job termination.

1. In 2012, an employer fired a staff member who repeatedly missed periods of work, claiming the lingering effects of a debilitating back injury.

After the employer saw Facebook photos of that employee at a fair taking part in physical activities on a day when she claimed to be in too much pain to come to work, the employee was terminated. A long legal battle followed, but the termination was upheld. (Jaszczyszyn v Advantage Health Physician Network, U.S. Court of Appeals for the 6th Circuit)

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2. In another case, the National Labor Relations Board (NLRB) upheld the termination of a bartender who ranted on Facebook about his job conditions and his employers (calling them "rednecks" among other things). The termination was upheld on the basis that there was no "concerted activity" because the bartender acted alone instead of with other employees. (See sidebar for an NLRB explanation of concerted activity.) The test in this case was whether the activity was "engaged in with or on the authority of other employees and not solely on behalf of the employee himself." (NLRB Div. of Advice, No. 13-CA-4688)

3. A third case revolved around union organizing and resulted in the NLRB refusing to support the termination of an employee who railed against his employer on Facebook. The language he used was replete with the "F word." However, a unionization vote was about to occur and the NLRB deemed that to be a more significant factor than the virulence of the language.

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To determine whether the diatribe described in this case constituted protected "concerted activity," the NLRB took into consideration multiple factors, including:

• The place of the discussion,

• The discussion's subject matter,

• The nature of the employee's outburst,

• Whether the employer provoked the outburst,

• Employer hostility to unionization, and

• Whether the discipline imposed (that is, termination) was typical of that imposed for similar violations or disproportionate to the offense.

Pier Sixty, LLC and Hernan Perez, 362 NLRB 59)

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4. Finally, in yet another case, the inappropriate action of a supervisor shifted the outcome in favor of the employee. A U.S. Customs Border Patrol employee was fired for "poor judgment" after using Facebook as a forum for trashing his employer. To gain access to the employee's Facebook page, a supervisor used a woman's photo to create a phony Facebook identity and then sent it to the employee with a "friend request." The employee accepted the request, which made his comments viewable by his new "friend."

The termination was reversed by an arbitrator, who ruled that the tactic used by the supervisor violated the Stored Communications Act. (Trapp v DHS, FMCS Case No. 12-56290)

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Firing based on social media posting is complicated. Dozens of new cases are being litigated and arbitrated all the time — underscoring the importance of implementing a strong, attorney-reviewed social media policy. And whether you implement a policy or not, be sure to consult your attorney before terminating an employee for social media activity.

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