by Leonard A. Bellavia, Esq.
Imagine the following scenarios:
- An employee and a consumer become embroiled in a heated disagreement. After the consumer leaves, your employee uses his smartphone to post unflattering remarks about the consumer on the employee’s Facebook page.
- Another employee expresses her disapproval of a decision made by her supervisor by logging into Twitter and “tweeting” her opinion to her friends and followers.
A past well publicized incident took place in Connecticut involving an ambulance company terminating an employee for comments she made on Facebook. If the reason given for firing the employee did not catch the media’s attention, the intervention by the National Labor Relations Board (“NLRB”) on behalf of the employee certainly did. Other cases have cropped up, like a restaurant terminating a waitress for venting on Facebook about a low-tipping couple and the termination of a group of Virgin Atlantic flight attendants because they voiced criticism of their employer’s policies on Facebook. What can or should you do if you are faced with situations similar to these?
A common misconception is that the First Amendment to the United States Constitution protects employees from adverse employment decisions based on comments they make online. This is not true. The First Amendment applies to actions taken by the government to restrict free speech, not by actions of private employers. So, if the First Amendment does not protect the employee, what may? Currently there is no federal law prohibiting private employers from terminating someone for conduct online, except in rare circumstances where the conduct is protected by another law like a “whistleblower” statute. While most states have not specifically prohibited employers from terminating employees for online conduct, several states have provisions barring employers from terminating employees for actions done outside of the workplace. Also, many states have prohibitions against “pretextual” reasons for terminating an employee, meaning you fired employee for reason ‘A’, but told the employee he or she was terminated because of reason ‘B’.
Here are some points to consider when thinking about your business’s online conduct policy:
- At-will employees versus contract employees: Do your employment contracts allow your business to terminate an employee for online conduct?
- Online conduct outside of the workplace versus online conduct while at the workplace: Do your employee handbooks address what is permitted and what is prohibited regarding employee conduct while using social media sites at work? Do employees access social media sites from your company’s assets like computers and smartphones? Does your state prohibit you from terminating an employee for online conduct outside of the workplace?
- Training: Are your employees aware of your online conduct policies? Do your employees understand how their conduct online can hurt them and your business? Are they aware of how to use social media assets like LinkedIn and Facebook to promote themselves and your business in a positive manner and how errant comments can damage everyone’s reputation?
- Be consistent: If you terminate John for using Facebook at work while Betty uses Facebook at work carte blanche, John may claim that his use of Facebook as grounds for termination was merely pretext for true reasons that are prohibited by law. Do you apply your processes equally to all of your employees?
Unprofessional activity by employees captured online about a consumer or that which reflects poorly on your business can harm your reputation and profitability for many years to come. Establishing policies that address employee conduct online can be tricky.
As always, our firm is here to answer any questions you may have and help develop processes that protect your business and your employees from issues arising from their online conduct. If you need help with this, please call us at 631-224-7000.