Do Employers Really Tread a Minefield When Firing Employees for Facebook Gaffes?

[Post by Venkat Balasubramani]

I’m not sure why, but this Wall Street Journal article (“Can Employers Fire Over Facebook Gaffes?“) screamed out for a comment. Maybe this is just a case of headline puffery, but the idea that there is some sort of legal minefield facing private employers who fire their employees over Facebook gaffes sounds silly. Most states adhere to some version of the “employment at will” rule, which means that you can fire an employee for any reason or no reason at all. Numerous exceptions have chipped away at this rule over the years, but as long as you steer clear of those exceptions, there’s nothing out there as far as I know that says you can’t fire an employee for a Facebook gaffe.

In any event, there hasn’t been much activity in the courts over social media-related firings when it comes to private sector employees. You would think from reading the article that examples of employers stepping on legal landmines would be plentiful, but the examples from the article aren’t particularly relevant. Some involve public sector employees (admittedly an area of a fair amount of litigation activity). Another example includes the Cisco in-house lawyer/blogger who butted heads with someone he called a patent troll. A third case involved restaurant employees whose semi-private page their supervisor accessed. (Claims around the allegedly improper access of employee communications by employers has been an area where there actually has been a lot of activity. See, e.g., “Pure Power Boot Camp v. Warrior Fitness Boot Camp” (granting summary judgment in favor of ex-employees based on the improper access of their emails by the employer).)

I think we will be hard pressed to see an example of a private company getting into hot water for disciplining or firing its employee over a Facebook gaffe (unless of course, there are other issues in the background). (Maybe I’m wrong, and there are a slew of cases cycling their way through the courts, but the article certainly does not cite to any.) The article does make a good point that social media allows the private and public to mix in ways that was not possible or likely before, and this could have legal consequences (e.g., an employer finds out about an employee’s health condition or membership in a protected class). The article also highlights the ongoing case involving the NLRB, which argued that Facebook posts complaining about employment conditions can be “concerted activity,” and the employer’s social media policy in that particular case chilled or restricted this activity. (As this post in the Courant notes, settlement discussions are ongoing in that case: “Settlement Talks Underway In Facebook Firing Case.” Here’s a post from Molly DiBianca that tells everyone to take a deep breath on this issue: “Employers, Don’t Despair. Social-Media Policies Are Not Prohibited by the NLRA.”)

Oddly, while lawyers in the Wall Street Journal’s story warned about the many perils of Facebook firings, over at King 5, a civil rights lawyer made the point that you can indeed be fired for your Facebook gaffes, and this happens all the time:

Civil rights attorney Kristin Case said Busch’s story is actually one that has become very common in her practice. ‘In the past two years there’s been an enormous boom in the number of people getting terminated for this,’ she explained…’If the employer can access something it finds objectionable on an employee’s page — even if the objectionable activity is legal — it could be grounds for firing. Case says that employees in the private world often misinterpret freedom of speech.’

(King5.com: “What you say on Twitter or Facebook could get you fired.”) Maybe I’m missing something, but it seemed like the Wall Street Journal article didn’t accurately capture the landscape. There are obviously issues to watch out for, but disciplining an employee for saying or doing something imprudent on Facebook didn’t seem like it would be near the top of the list of employer concerns. Employment lawyers – if I’m missing something, please enlighten me! In the meantime, I’m going to chalk this up to media hype, which is typical when it comes to social media and lawyers, but amplified even more when it comes to social media and employment issues. (See, e.g., “Will Dress Codes for Workplace Avatars Soon Be the Norm?” for another recent example.) Interestingly, the public backlash over a Facebook firing may be more significant than any risk of liability. (“Waitress Is Fired for Her Complaint on Facebook: Lesson Learned for Employers?“)

The article mentions policies, along with a helpful quote or two from people who draft such policies. I don’t know what the best approach is here. Many policies are overwrought. Some are aspirational and simple, almost to the point of being gimmicky. Some useful thinking on this came from a blog post by David Griner: “Why your office shouldn’t have a social media policy.” Griner’s main point is that an employer’s social media policy should not aim for specificity as far as social networks, because the space is constantly changing:

[G]iving social media its own HR policy isn’t cutting edge. It’s short-sighted. Your company’s time and energy would be far better spent developing a policy that can be universally applied to all types of digital communication — e-mails, forums posts, blog entries, tweets, status updates, etc. In my opinion, a digital policy for employees should be akin to the U.S. Constitution. It should convey the organization’s overarching stance on how workers should comport themselves online. The question isn’t whether your policy includes Twitter, Facebook, LinekdIn and YouTube. The question is whether your policy acknowledges that there is no longer a clear divide between the personal and the professional.

Regardless of what a policy should contain, I do think two things are useful: (1) the company should make clear what social media accounts (if any) are official accounts and (2) the company should have a designated person who should be in charge of monitoring the accounts or pages, and who regularly monitors them and deals with issues that arise.

Loosely related: “Packers Fan Fired Over Team Necktie; Will Litigation Ensue?”

Previous post on this topic: “Company Not Responsible for Harassive Comments by Coworker on Personal Facebook Page.”