Can I Fire Someone For a Facebook Post?

I have a Facebook contact who frequently bashes her employer on her posts. Does her employer have to take that or can they take employment action?

Social media has been around long enough now that there is a decent amount of legal precedent. But as you might expect, the answer is, it depends.

If the posts fall under the umbrella of protected concerted activity there is not much the employer can do from a disciplinary perspective (although there is plenty they can do to attempt to re-engage this employee – but that’s the subject of another blog post). Protected activity includes things like pleas to other employees to help her do something related to her grievances or comments about working conditions, wages, etc.

However, if the employee simply goes on a rant and says disparaging things about the company and her boss, threatens other employees, says things that aren’t true, or discloses confidential or proprietary company information, this may fall outside of the protected activity umbrella and may be actionable.

When I made my first effort at writing a social media policy, I found two distinct types of examples. The first were written by lawyers and risk managers who clearly didn’t understand social media. They were full ofthou shalt nots but were not particularly useful. Rulings by the National Labor Relations Board (NLRB) in 2011 and 2012 determined some of the provisions of these early social media policies to be illegal.

But the second group of examples I found were written by lawyers and marketers who do understand the power of social media to help a company, its brand and its culture. These policies encourage the positive use of social media but provide employees with some simple guidelines that will keep them out of trouble with the company.

Having a well-written social media policy can be a life-saver when faced with the inevitable situation when someone posts something that rubs the wrong way. Without one, management finds itself reacting to what they run across and potentially making a bad situation worse. And worst case, they run afoul of the NLRB.

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