FAQ: Many of my employees and supervisors are on Facebook, LinkedIn and other social media sites and have been posting work-related comments in violation of my company’s social media policy, which prohibits employees from posting anything about the company. Can I fire or discipline an employee for violating the policy?
Your question raises an important and timely subject for employers as well as employees that our Social Media Employment Law Attorneys have been encountering lately. The proper use of social media sites by companies and its employees can have a significant positive impact. In today’s technological age with dozens of social media sites, employers should consider the benefits and risks of appropriate uses of social media before crafting their employee policies to maximize the value while limiting the risks. Simply having a policy is not enough, companies should train their employees on the legal and company considerations.
A recent case underscores the importance of having an effective social media policy. The National Labor Relations Board (“NLRB”) filed a complaint on behalf of Dawn-Marie Souza, an emergency medical technician, against her former employer, the American Medical Response of Connecticut (“AMR”), for firing her for violating its company’s Internet policy by criticizing her supervisor on Facebook. According to the complaint, Souza was denied union representation after her supervisor asked her to prepare an investigative report regarding a customer complaint about her job performance. Later the same day, she posted disparaging remarks about her boss on her Facebook page and then exchanged negative comments about him with other employees. AMR responded that Souza was fired because of complaints about her work and not because she violated company policy prohibiting employees from making any negative remarks about their bosses or discussing the company on the Internet.
However, the NLRB claims that Souza was illegally fired and that her comments on Facebook are protected speech under federal law. The NLRB’s acting general counsel has stated that “[i]t’s the same as talking at the water cooler” and that “employees have protection under the law to talk to each other about conditions at work.” According to federal law, both union and non-union workers have the right to talk to co-workers and make remarks about their employers on their own time.
An NLRB judge will hear this case on January 25, 2011. Given the controversial nature of this issue and the far reaching implications, the outcome could affect employers nationwide, especially employers who have a broad policy prohibiting any comments on the Internet. If you have a blanket social media policy, consult with your attorneys to ensure that you are not infringing on any of your employee’s rights or labor laws. In a survey by the Society of Corporate Compliance and Ethics, approximately 25% of employers surveyed stated that they had disciplined an employee for improper activities on social networking sites.
If you are a private sector non-unionized professional employee or employer, the above union protections do not apply. You can be fired for what you post or comment on a social media site. In fact, if you live in an at-will state, generally your employer can fire you for no reason or for any reason whatsoever. See our prior Blog. If you are a private sector employer, it is essential for your company to have a social media policy, which not only protects against employees posting company secrets, or disparaging your company’s reputation but also protects against lawsuits arising from various employment discrimination claims such sexual harassment or employment discrimination. For example, employees could be sexually harassing each other on-line or engaging in impermissible favorable treatment. It is possible that an employee could complain that her supervisor is Facebook friends with everyone on her team and she feels ostracisized or singled out.
A recent survey showed that 80% companies say they have a formal written policy for social media sites, which was up 67% from 2009. Exercise caution before taking any adverse employment action against an employee for posting or commenting on a social website. Some states like New York have statutes the expressly prohibit adverse employment actions based on employee’s recreational activities. If you don’t have a social media policy, call the Social Media Employment Law Attorneys at Villanueva and Sanchala to help you develop a social media policy appropriate for your company.
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