Social media such as Facebook, Twitter, Instagram, Tumblr and LinkedIn have permeated the global culture and employment is no exception. In the employment context, however, questions tend to surface over whether an employee can be fired for postings placed on social media sites. To the extent that one can ever speak safely in the context of generalities, we know that the law is evolving to suggest that employees may be terminated for postings they place on social media sites. However, efforts to terminate an employee for postings to social media sites should be undertaken with careful consideration of the facts and circumstances since evaluation of the issues requires a somewhat complex analysis of various rights, regulations, and interests.
The National Labor Relations Board (NLRB) recently issued a report in which it compiled information received from complaints coming from individuals who were terminated from employment as a result of postings made to their personal social media accounts. Some states, Colorado included, are “right to work” states, where employers can terminate an employee for any reason or no reason, provided that the firing is not premised on an employee’s status as a member of a protected class (i.e., race, ethnicity, gender, political affiliation, sexual orientation, etc.). States also generally have statutes that protect employees from retaliation for blowing the whistle on employers who engage in unlawful activity or who engage in activity against the public interest. Accordingly, to the extent that an employee is terminated for engaging in an otherwise lawful activity related to whistle-blowing, an employer cannot lawfully move to terminate an employee for any activity, including social media posts related to that. Finally, one of the most often invoked protected rights raised in the context of employee termination cases related to social media is the right to free speech. The United States Constitution protects a person’s free speech in relation to governmental action. Private employers, can, however, terminate an employee for what an employee says without violating an employee?s constitutional civil rights.
Private employers must, however, respect the rights of employees to engage in “protected concerted activity”. This right is the foundation of labor union formation and although this protection applies to all employees, whether unionized or not, it permits employees to discuss criticism of an employer, such as working conditions, policies, or disagreements with operations without fear of losing their jobs, but only to the extent that the discussions occur among workers. Once an employee starts vocalizing complaints in social media without an effort to engage other workers, the discussion is no longer a protected concerted activity.
Take for example the?situation in which a waitress had been serving a table of customers for several hours, perhaps even past her shift. The waitress was disappointed when she received what she perceived was an inadequate tip. In her frustration, she took to Facebook and posted negative statements about the customers’ “cheap” tip and went so far as to name the restaurant in her post. The restaurant terminated the waitress.
Another real life example was recently provided when a woman posted on Twitter that “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” The post was seen by a Cisco employee and Cisco fired the woman before she even started. The incident went viral and ultimately became known as the ?Cisco fatty?.
The lesson? Employees should be cautious about posting comments on social media that could lead to getting them fired. Employers are wise to have effective policies in place and should be aware of the various rules, regulations, and statutes (and the interplay between them), together with the evolving case law in this area.
SMART TIP: If you believe you have been wrongfully terminated over social media posts, or if you terminated an employee who is challenging the termination, we encourage you to consult with legal professionals. If you are a business that needs to establish a social media policy we also encourage you to consult with legal or human resource professionals to protect your company’s interests.