Can you fire an employee for negative Facebook postings? It depends, apparently

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John O'Connor
John O'Connor

Faceboook turned 10 this week.

When Mark Zuckerberg launched “The Facebook,” he saw his outlet as a way to let people share information about themselves with friends. Safe to say he was onto something. In fact, Facebook has essentially changed the way more than a billion people connect with each other via the Internet.

But what's to be done when one of those people is an employee who is sharing harmful workplace information? For example, can you discipline or fire a worker who rants on Facebook about hellish working conditions at your community? Perhaps not, even if you have a policy that prohibits it.

Consider what happened to American Medical Response of Connecticut. Three years ago, the National Labor Relations Board filed a complaint against the firm. Why? The company terminated a unionized worker who had used Facebook to berate her boss. The board determined that all employees have the right to address working conditions with coworkers, regardless of how the firm feels about it.

What about looking at employees' Facebook postings? Here the law appears to be murky. The test seems to be legitimate business interests versus prurient trolling. And by the way, good luck drawing that line.

If you are checking to see if an employee who called in sick actually had a Ferris-Bueller's-Day-Off kind of experience, you're probably covered. Same goes if you suspect the employee is posting sensitive company information. But if you are curious about whether a new aide is a boxers or briefs person, you might be better off asking directly. Which brings up another point: If it would be inappropriate to ask face to face, you probably shouldn't be fishing for the answer online.

And what if a fellow employee rats out someone who is apparently not drinking the company Kool-Aid? The same take-a-look rules seem to apply, according to legal analysts.

Yes, it can be quite cloudy. For now, here's what can be said with some certainty:

The National Labor Relations Act gives your employees the right to discuss and complain about work conditions with each other, including on social media.

However, you do not have to permit postings that violate company policies (assuming they don't run counter to labor law), or reveal trade secrets. Postings that are abusive, libelous or pornographic also can be acted on.

It's safe to say that this will be a moving target for some time to come. It's probably also safe to predict that right about the time this all gets sorted out, some new tech toy will make Facebook-related HR headaches look like child's play.

 

John O'Connor is Editorial Director at McKnight's.

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