Can You Fire an Employee for Their Facebook Post?
Today’s world is fueled by social media outlets such as Facebook, Twitter, and Instagram. In the modern employment environment, it is inevitable that a disgruntled employee will vent about his or her workplace through a Facebook post, or blast his or her supervisor on Twitter. As an employer, you are likely wondering what steps you can take in response to an employee’s disparaging social media post. Can you outright fire the employee? What can you do to prevent it from happening in the first place? This article will shed some light on these questions; however, it is always prudent to consult with a qualified employment attorney.
The National Labor Relations Board (NLRB) protects employees’ right to make certain comments on social media, but the protection has limitations. Under NLRB guidelines, employees are allowed to make statements (including negative ones) on social media regarding their working conditions and pay. The NLRB considers this a “concerted activity” in which the employee is engaging coworkers, assuming they are among the employee’s Facebook friends, Twitter followers, etc., in an effort to improve working conditions or pay. Thus, it may be unlawful for employers to fire an employee for publicly criticizing the company or its management on social media. However, some social media comments may be so egregious that they lose protection and warrant termination. For instance, the NLRB has found that Facebook posts advocating specific acts of insubordination were not protected and warranted termination.
Likewise, social media comments may not be protected (and merit company discipline) if they are:
- slanderous comments about an employer or a co-worker;
- comments that are discriminatory, racist, sexist, etc., in nature;
- comments that share internal company information;
- posting inappropriate content on a company’s social media platform; or
- posting on a social media platform while at work or on company-owned devices.
Companies may be wise to proactively address this issue by establishing a social media policy for its employees. The NLRB has struck down social media policies that broadly prohibit making negative comments about the company, its practices, or its employees. However, the NLRB has approved social media policies that prohibit employees from making negative comments about the company’s customers, from using social media during work time without company approval, or from sharing confidential business information or trade secrets on social media.
If you would like more information on addressing employee use of social media, please contact Cotney Construction Law at (866) 303-5868, or submit a contact request form to speak with an experienced construction law employment attorney.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is General Counsel and a director of the Florida Roofing & Sheet Metal Contractors Association (FRSA), General Counsel for National Women in Roofing (NWIR), Treasurer and a director of the West Coast Roofing Contractors Association (WCRCA), a One Voice member of the National Roofing Contractors Association (NRCA), and a member of several other roofing associations including The Roofing Industry Alliance for Progress.
Cotney Construction Law is a national construction law firm currently with seven offices located throughout Florida, Nashville, Tennessee and Mobile, Alabama with its main office in Tampa, Florida. Specializing in the representation of businesses and professionals in construction disputes and transactions, Trent Cotney is a well-known advisor and legal counsel for the roofing industry. The firm’s practice areas include construction law, litigation, arbitration, contract review, immigration, employment, contract drafting, OSHA defense, licensing defense, bid protests, lien law, bond law and alternative dispute resolution.