“Facebook got me fired!” – Social Media and Employee Termination
The internet has brought a myriad of changes to the way business is conducted in the 21st century, be it through email, teleconferences, or online document storage. As businesses become more and more tech savvy, so do the employees who often fail to realize the separation of work and private life. What one upset employee can see as a means of blowing off steam after a bad day at the office, the employer may see as an attack upon the corporation itself, or one employee’s comment may be seen as the employer’s stance on a controversial issue. As social media continues to encroach on the line dividing work and personal lives, employers are continuing to struggle to determine appropriate and effective social media policies to protect not only their corporation, but the rights of their employees.[i]
With social media sites such as Facebook and Twitter becoming the means for the public to voice their opinions, employers must now be on the lookout for employees discussing company issues. The National Labor Relations Board (NLRB) has found employers in violation of National Labor Relations Act (NLRA) in several instances in which an employee was fired for complaining about their employer on social media.[ii] With the NLRB continuing to uphold an employee’s right to use social media to vent about their employer, employers are still being held liable despite their careful drafting of social media policies. The NLRB has always drawn hard and fast rules, protecting employees who discuss their working conditions, complaints and terms of their employment with other employees, and these rights are beginning to apply to social media forums as well.[iii]
While the voyage ahead may seem dark for employers, the NLRB does offer some relief, stating that employees are generally only protected when engaging in activity to improve their working conditions, not complain about individual grievances.[iv] In one instance, an employer was held to be in the right for terminating a bartender who went to social media to complain about his customers and employer, going so far as to wish harm on the customers.[v] The NLRB held that the employee had no standing to dispute his termination, as the complaints were not made in such a way as to fall under the NLRA. The number of cases holding for and against employers in social media disputes highlights the inconsistency in rulings, and litigation will continue to flourish.
The number of cases have made it clear that employers are at significant legal risk when terminating employees for making comments on social media against their employer. While employers still have the right to create and enforce policies prohibiting their employees from disparaging the employer or its customers, the rights of the employees under the NLRA must be balanced. Until the law is able to keep up with the ever changing role of social media, employers appear to bear the burden when deciding to terminate an employee for online outbursts. While the NLRB has sided with the employer on a few occasions, it might be wiser to turn a blind eye to the rant of an employee who simply had a bad day.
[i]David Baron, Social Media in the Workplace Creates New Legal Risk, Bloomberg Law, http://about.bloomberglaw.com/practitioner-contributions/social-media/ (last visited November 2, 2013).
[ii] Sara H. Jodka, NLRB Issues Third Facebook Firing Decision (employers 1, employees 2), Lexology (April 25, 2013), http://www.lexology.com/library/detail.aspx?g=1fb0e928-a283-4bb6-a475-a8fb8f6fd8ba (last visited November 1, 2013).
[iv] Dan Fastenberg, Facebook Firings: Top 10 Cases and the NLRB’s New Guidelines, AOL Jobs (Sep. 2nd 2011, 7:20 AM), http://jobs.aol.com/articles/2011/09/02/facebook-firings-top-ten-cases-and-the-nlrbs-new-guidelines/ (last visited November 2, 2013).