Question & Answer-Laws for Social Media Posting about their Job
Q: Can I terminate an employee based on something the employee posted on Facebook?
A: Generally speaking, yes; however, there are some important items to consider prior to making a termination decision based on an employee’s social media posting.
The most important consideration is whether the subject matter of the posting is protected under the National Labor Relations Act (NLRA). The NLRA protects the rights of employees to act together to address conditions at work, regardless of the company’s union status. The Act prohibits employers from interfering, restraining or intimidating employees who exercise their rights to engage in “concerted activities for the purpose of … mutual aid or protection.” It also prohibits employers from discriminating against employees based on protected activity.
Under this Act, speech that is protected includes any employee discussion regarding terms or conditions of employment, such as: compensation, benefits, safety conditions, shifts/working hours, disciplinary procedures, etc. The NLRA considers such postings to be “protected concerted activity” because the employee is discussing terms and conditions of employment with fellow employees via an online forum.
However, it is important to remember that an employee’s comments on social media websites are generally not protected if they are mere gripes or comments that are not made in relation to group activity among employees. Additionally, if an employee violates an employer’s policy, such as the company’s policy on harassment, discrimination, HIPAA compliance, client confidentiality or online bullying, such activity is generally not protected under the NLRA.
Prior to terminating an employee due to a social media post, we recommend speaking with your legal counsel or an HR Professional.
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