Wrongful Termination in the Age of Social Media

Posted On: January 14, 2016 under

Almost since their inception, social media platforms such as Facebook and Twitter have been places where people go to blow off steam about work and to discuss their jobs, their coworkers, and their employers. As employers have become more aware of the discussions and information posted online, it’s no surprise that there have been cases where employees were disciplined or even fired for the content they shared publicly. You might be tempted to side with the employer on this, thinking that a company is within its rights to fire an employee who criticizes policy or his boss, or who reveals sensitive information for the world to see. Conversely, you might agree with the employee’s right to express himself freely on his personal web page. However, the law is not completely straightforward when it comes to social media use and abuse in this context, and employers and employees alike should bear this in mind.
The National Labor Relations Board (NLRB) is in the process of creating laws related to how companies can monitor and use the social media of their workers to protect their own reputations while respecting the rights of their workforce. The NLRB also hears cases in which those rights may have been infringed upon, such as the case of two employees of Watertown, CT’s Triple Play Sports Bar who was fired after complaining about the bar’s bookkeeping habits on Facebook. The NLRB sided with the employees, in this case, saying that they were not simply complaining but were protesting unfair conditions on their coworkers’ behalf, a thing which is protected by law.

Because cases such as these can be tricky to determine, the NLRB encourages companies to have clearly defined and thoroughly explained social media policies that align with the speech protections and collective bargaining rules contained within the National Labor Relations Act. This is a good business practice for everyone, protecting companies from frivolous wrongful termination lawsuits and protecting employees when they have legitimate wrongful termination suits and deserve to see justice served.
If you’re confused about what these policies should contain, it’s understandable. There is a lot of ground to cover between airtight social media rules and the real-world use of that media. But the authors of a new study out of Indiana University-Purdue University Fort Wayne took an in-depth look at some recent employee firings connected to social media and the NLRB’s policy rulings, and they came up with a list of recommendations that can help. They are the following, in brief:

  • Legitimate opinions and concerns about a company are fair game for social media, but making fun of the company or its customers are not.
  • Don’t use confusing or unclear wording when writing social media policies. Instead, use specific examples, remembering that different people will have different definitions of what words like “appropriate” and “professional” mean. Realize that you can’t ban gossip, for example, but you can prohibit spreading stories designed to harm company morale.
  • Make sure you are up to date on the law because it changes fast, and recognize that your specific industry may have its own specific needs as far as policy. For example, anyone working in healthcare must respect patient confidentiality at all times; this same level of confidentiality is not required of a bartender.

Last but not least, it may be a good idea to talk to an experienced lawyer or hire an outside consultant who can help with reviewing guidelines and training employees to follow them. It will make both employer and employee safer and happier in the end. For wrongful termination, it can beneficial to have an experienced attorney who understands local policies.