Posted by Melissa Fleischer, Esq. on Feb 6th 2011

Have you ever wondered whether you can fire an employee for what they say to their friends on Facebook?  The answer might surprise you. 

What do you need to know before you fire an employee for postings they have made on Facebook?  First of all, you can terminate an employee who violates the law.  So if the employee defames one of your employees or your business by statements the employee makes on a social media post like Facebook, then you may be able to terminate the employee.  The same is true if an employee harasses another employee or violates your Anti-Harassment Policy by creating a hostile work environment by their comments or pictures they post on Facebook. 

In many states, there are laws against terminating employees for off-duty conduct.  These laws usually apply to off-duty lawful activities such as smoking and protect employees who smoke from termination.  However, in a few states such as New York and Colorado these laws have been extended to include a prohibition on the employer terminating the employee for any lawful off-duty conduct which may include activities such as blogging and posting on Facebook as long as such posts are not unlawful. 

Recently, the National Labor Relations Board has reminded employers that the National Labor Relations Act protects employees engaged in "concerted activity" and prohibits employers from terminating an employee for negative statements about their supervisor or working conditions.  This is true even if the employer is not yet unionized. 

In a recent Connecticut case, the NLRB filed a complaint against a Connecticut ambulance company who allegedly terminated an employee for negative comments the employee made about her supervisor on Facebook.  The company apparently had a social media policy that prohibited employees from making any comments about their supervisors or the company on any social media post.  The NLRB argued that this policy may have violated the NLRA because it prevents employees from engaging in concerted activity.  The Company, however claims the reason the employee was terminated was due to her poor work performance and not because of the adverse statements about her supervisor. 

So before terminating an employee for statements they make on Facebook or any social media:

·         Research what your state law requires regarding terminations for off-duty lawful activities

·         Determine if the statements are lawful or unlawful

·         If unlawful, such as defamatory or harassing then an employer may be able to  terminate the employee

·         Always check with local counsel prior to terminating an employee

Prior to terminating any employee for a Facebook posting, employers should ensure that they have well-drafted social media policies that set forth in clear terms what employees may and may not do and the consequences for violations of that policy.