Tips for Dealing with Employees Whose Social Media Posts Reflect Badly on Your Company

In early February 2015, a Texas pizzeria owner “terminated” an employee before she’d even had her first day of work after she tweeted vulgarities about her future job. In January 2015, the Fifth Circuit Court of Appeals found that a Mississippi police sergeant, fired in 2012 after she posted Facebook comments criticizing her police chief, had no First Amendment protections for her statements. And in December 2014, Nordstrom fired an Oregon employee who had posted a Facebook comment seeming to advocate violence against white police officers. So, are employees’ off-duty social media postings fair grounds for termination? They can be—but be sure to keep the following tips in mind.

1. Employees’ Off-Duty Social Media Postings May Constitute “Protected Concerted Activity.”
Today, employees share gripes and gossip online, as they used to around a water cooler. The National Labor Relations Act (NLRA) has long protected employees who use any avenue, including social media, to discuss working conditions, including pay and benefits. Such “protected concerted activity” cannot support a termination. Importantly, however, this protection is not extended to employees who merely vent individual gripes. Nor does it protect categories of employees expressly excluded by the NLRA, such as supervisors.
Last August the scope of protected activity was expanded to nonverbal online communication. The National Labor Relations Board (NLRB) found that an restaurant employee who had merely clicked a button “liking” a Facebook post critical of his employer had engaged in protected concerted activity and was unlawfully discharged as a result. Employers should consider that similar online activity, such as retweeting and pinning, may merely indicate approval of another’s content regarding workplace concerns or grievances, and may therefore be found to constitute protected activity.

2. State Laws May Protect Employees’ Off-Duty Conduct.

State laws may prevent employers from firing or taking adverse employment actions against a person based on that employee’s lawful off-duty conduct. New York, for example, prohibits employers from taking adverse employment actions against employees who engaged, off-duty and off-premises, in (a) legal political activities; (b) legal use of consumable products; (c) legal recreational activities; and (d) membership in a union or exercise of rights relating to union activity. Employment actions may be taken, however, if the offensive activity “creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest.”

Employers must thus take into account both federal laws such as the NLRA and any applicable state laws.

3. Broad Social Media Policies May Be Invalid. 

Employers often rely on social media policies to define the scope of what employees can or cannot publicize about the company online. Such policies, when enforced uniformly, can indeed help validate the firing of an employee who criticizes customers, reveals trade secrets, or creates a hostile environment for co-workers. However, a grey area arises when employers seek to ban social media posts that are critical of the company itself, or prohibit exchange of certain information. Those policies may run afoul of NLRB advisories and rulings, which apply even if the company does not have any unionized employees. In general, the NLRB has been critical of policies that prevent employees from disparaging a company or its employees, or from discussing their own compensation information, on the grounds that such policies may improperly discourage employees from taking protected actions in efforts to improve their working conditions.

4. Employers Should Consider Potential Public Relations Backlash.
In recent years, racist, sexist or otherwise offensive social media posts by employees have gone viral, often resulting in the employment of the poster being terminated. In early July, for example, SiriusXM fired an on-air personality who posted what the company described as “racially-charged and hate-filled remarks on social media.” In December 2013, the IAC media company fired its senior director of corporate communications after she tweeted what many characterized as a racially offensive comment about AIDS.
Both firings were lawful. Indeed, subject to federal and state laws, employers may terminate employees whose off-duty comments, online or otherwise, negatively affect the company’s reputation, affect morale, or pose potential liability to the company.
Sometimes, however, the firing itself can generate negative publicity—especially when it is discussed on social media. For example, last fall, Uber was the focus of attention when it terminated, and later reinstated, a driver who had tweeted a link to an article claiming that driving for Uber wasn’t that much safer than driving a taxi. In early 2013, Applebee’s president fired a waitress who had posted a customer’s receipt, but was then forced to publically justify its decision after social media criticism of the termination.
A well-crafted social media policy, which takes into account the law, covers the type of activities that led to the terminations, and is consistently applied, can help employers deal with such situations.
Like the Texas pizzeria owner, the Mississippi police department and Nordstrom, you may be within your rights to fire employees for off-duty social media postings. Following the above tips and having appropriate social media policies in place can help ensure that you are.