Dealing with Employee Facebook Postings can be Dangerous

May 5, 2015

A number of recent decisions have laid out some of the risks related to employee Facebook postings and decisions by the employer to terminate an employee for inappropriate statements on Facebook. These decisions have involved constitutional challenges to a termination of a public employee for liking the Facebook page of a particular candidate for office, and National Labor Relations Board decisions holding that Facebook postings were so egregious and insubordinate they justified the termination of an employee for such conduct.

Employers must recognize that the NLRB has rendered a number of decisions over the past several years that have limited the right of an employer to terminate an employee for statements made on Facebook (or other social media sites) that are critical of the employer or how the employer conducts business. The NLRB has held that these postings by an employee are considered protected under Section 7 of the National Labor Relations Act as protected speech because they involve commentary about the working conditions of the employee. A recent decision by the NLRB, however, held the postings by two employees were inappropriate and the company acted properly in terminating the employees. The postings showed a clear intention to engage in insubordinate conduct trying to disrupt the workplace and also involved the use of profane language when commenting about the company and the anticipated activities of the employees. The NLRB held that the statements had such “pervasive advocacy of insubordination” that the statements lost their protection and could properly form the basis for the termination of the employees. In other words, the employees were indicating they were going to act with such aggressive insubordinate activity to disrupt the workplace and therefore the company had a basis to take disciplinary action and terminate the employees. 

Another recent decision held that a public employer could not terminate an employee who “liked” the posting of a candidate in the Sheriff’s campaign. When the incumbent sheriff was re-elected, he pursued the termination of the deputy sheriff that liked the Facebook campaign page of the opponent. The Fourth Circuit Court of Appeals held that this statement (the “liking” of the Facebook page by one-click) was considered protected speech under the First Amendment and could not form the basis for a decision to terminate the employee. Terminations for exercising the right of protected free speech are not allowed under the Constitution.

These are examples of the types of cases that have arisen regarding employee conduct on social media sites. Employers must be very careful if they are considering some type of adverse employment action against an employee because of Facebook postings. In many instances, the employer will be at great risk of either a finding from the NLRB or a court that the determination based upon the Facebook posting was not appropriate. Caution should be exercised in all instances.

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