Terminations based on employees' Facebook posts (or posts on other social media sites) are nothing new. The pace of such firings reached such a crescendo three years ago that the National Labor Relations Board (NLRB) issued a legal memorandum summarizing how it had ruled in a variety of cases brought to the Board.

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Facebook Firings: Think Before
You Leap

2. Terminations based on employees' Facebook posts (or posts on other social
media sites) are nothing new. The pace of such firings reached such a
crescendo three years ago that the National Labor Relations Board (NLRB)
issued a legal memorandum summarizing how it had ruled in a variety of
cases brought to the Board. In a nutshell, the NLRB believes that Facebook
and other social media platforms for many employees have become "the new
water cooler," a phrase used by NLRB chairman Mark Gaston Pearce.
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»

3. The NLRB says postings and exchanges among employees working for the
same company might fall under the category of "concerted activity," involving
"protected speech." Specifically this refers to certain discussions (negative or
otherwise) about wages and working conditions. An activity is defined as
concerted when "an employee acts 'with or on the authority of other
employees, and not solely by and on behalf of the employee himself,'" the
memorandum explained. Protected speech involves discussion among
employees which could lead to organizing and starting a labor union.
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Employers cannot prohibit or impede such employee conversations, whether
they occur face-to-face or on the Internet. However, the boundaries of
concerted activity and protected speech are not always clear, and are
constantly the subject of judicial interpretation and refinement.

4. Cyber Bullying
One of the cases noted in the NLRB's memo involved the firing of five
employees of a social services agency after they held a Facebook discussion
concerning staffing levels and employee performance standards. The
messages included a negative entry about another employee, who had made
frequent critical comments regarding the overall job performance of
employees of that agency. The criticized individual became aware of the
online comment, and complained to her supervisor that she was the victim of
"cyber bullying." The next day the five participants in the dialog were
terminated.
The NLRB first ruled that the Facebook postings involved concerted activity,
because they began when one employee asked for guidance from the others
on the issue of job performance within the organization. The Board also
concluded it was protected speech, based on its opinion that "it was clear
from the context that the statements implicated working conditions," and
were not character assassination.
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5. Overly Restrictive Policies
In another case, the NLRB ruled an employer's social media policy, laid out in
its employee handbook, was too restrictive. "It prohibited employees from
making disparaging remarks when discussing the company or its supervisors,
and from depicting the company in any media [including social media]
without company permission," the NLRB memorandum states. An employee
was terminated for violating that policy after posting critical comments about
her supervisor, including using the term "scumbag."
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6. The NLRB concluded that policies banning offensive conduct and rude or
discourteous behavior "proscribe a broad spectrum of conduct and contain
no limiting language" which would clearly exclude conversations that might
represent concerted activity and protected speech.
Employers win cases, too. Last November a U.S. District Court for Oregon
upheld an employer's termination of an employee of Oregon's Department of
Human Services in Shepherd v. McGee. Shepherd was a child protective
services caseworker who was very fed up with many of the parents she
visited. The purpose of her visits was to determine whether a case should be
brought against them to gain custody of children.
Shepherd identified her employer on her Facebook page. In one of her
Facebook postings, she wrote: "So today I noticed a client [on public
assistance] getting into a newer BMW. What am I doing wrong here? I think I
need to quit my job and get on [public assistance]." In another post, she
wrote, "almost every client home I go into has a gigantic flat screen TV." She
also commented on her clients' need for "reliable birth control."
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7. Damaged Reputation
Her employer, upon learning about these comments, concluded Shepherd's
reputation as a neutral observer was shot, and that the Department could no
longer use her as a witness in a case. Her Facebook rants, they said, would be
used against the state when it sought to remove a child from its parents'
custody. Shepherd was terminated.
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8. Her legal claim against her employer in fighting the termination was that her
First Amendment rights had been violated. However, the Court concluded the
interests of the Human Services Department outweighed Shepherd's First
Amendment rights.
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»
Would you be as successful in upholding a termination when an employee
rants about your customers online? Several factors could tip the scales one
way or the other when there is no clear intent to punish an employee's
concerted activity or protected speech, as in this case. For example, if the
employee's Facebook privacy settings were "high," the employee could argue
the communication was purely personal and you, the employer, had no
business paying attention to any of it.
However, if a Facebook friend of the employee were to pass the rants on to
you without your instigation, you would have a stronger defense.

9. Realistic Thinking
In the end, even when you are confident you could win this kind of case, it
just might not be worth the trouble and expense to terminate such an
employee. Take a deep breath and think realistically about the situation:
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• How much damage is really being done?
Some social media employee behavior is worthy of termination, come what
may. But that assessment should be made dispassionately with a recognition
that you may pay a price and discover a judge doesn't see the situation the
same way you do.
• How many people are likely to pay any attention to the rants?
• Is it not reasonable to assume the employee is making similar comments
in other settings? And:
• How would your reputation as an employer fare if litigation following a
termination becomes the talk of the town?

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