Can you fire someone for disparaging your company on Facebook?

February 21, 2011 6:00 AM
Curtis Smolar

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(Editor’s note: Curtis Smolar is a partner at Ropers Majeski Kohn & Bentley. He submitted this column to VentureBeat.)

A reader asks: I have an employee who has gone onto Facebook and griped about my company. Can I institute company policies that prevent employees from doing this and terminate their employment them if they continue?Answer: It’s a frustrating and embarrassing situation for a business to see its employees assailing it via social media platforms – but penalizing them for it is a tough, if not impossible, task.

The debate over the First Amendment rights of the employee to post their negative feelings about a company and the rights of the company to protect its private informa tion used to skew in the employer’s favor. That has changed, however, and today the federal government counsels against restricting employees’ Internet chatter, regardless of its nature, because it may violate their First Amendment rights.

That message was delivered in a recent National Labor Relations Board (NLRB) case. In November 2009, NLRB filed a complaint against American Medical Response of Connecticut (AMR ) (NLRB v. American Medical Response of Connecticut). In this case, AMR had a social media policy which did not permit employees to depict the company in any way whatsoever over the Internet without company per mission, and which also included a Blogging and Internet Policy that prohibited employees “from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors.”

An AMR employee requested union representation at an internal investigation that the employee believed would result in disciplinary action. She was then threatened by her supervisors with disciplinary action for requesting representation. The NLRB, in a press release, said that after work on her home computer the employee posted negative comments about the supervisor on her Facebook page. Co-workers joined in and showed their support of her.

The employee was suspended and later terminated because the company viewed her Facebook postings as violating the company’s social media policies.

The NLRB investigated and asserted that the employee’s Facebook postings constituted protected concerted activity. Generally, a “concerted activity” is an activity in which two or more employees discuss their working conditions. That sort of protection has its roots in the right of free association. The NLRB also determined that, by prohibiting the employee’s concerted activity, the company’s social media policies were illegal.

The case settled this month. According to NLRB, AMR has agreed to revise its social media policies so that they do not improperly restrict employees from discussing wages, hours and working conditions.

That said, employers may still institute social media policies that do not interfere with the employees’ protected activities. The NLRB case does not appear to bring into question agreements employees may have to maintain the non-disclosure of confidential information and/or trade secrets. Nor does the decision address and does not appear to prohibit non-disparagement clauses in separation agreements.

This recent NLRB settlement is groundbreaking for social media law. If you’ve got a social media policies, it’s probably a wise idea to review it carefully with your company’s attorney to see if they run afoul of the NLRB’s expansive view of concerted employee activity.

Startup owners: Got a legal question about your business? Submit it in the comments below or email Curtis directly. It could end up in an upcoming “Ask the Attorney” column.

Disclaimer: This “Ask the Attorney” post discusses general legal issues, but it does not constitute legal advice in any respect. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel in the relevant jurisdiction. VentureBeat, the author and the author’s firm expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this post.

captainkwark

Something is rotten in the state of Denmark. I think our “government institution” has finally blurred that fine line between protecting the rights and freedoms of its citizens and forcing businesses and citizens to comply with its will. We are experiencing a new era of communication via social media but that does not grant us absolution from our free speech. After all, isn't signing a confidentiality waiver essentially the same thing? Yet somehow that is perfectly legal, which I'm OK with. Just as a parent has the right to protect the health and welfare of his/her family I think an employer should be able to protect their business, their investment, their welfare.I'm assuming the AMR employee mentioned in this article was simply trying to blow off some steam when she posted her comments on facebook, however I believe she made a mistake in choosing her outlet. I can't claim that I've never pissed and moaned about a superior before, lets be real. But I never decided that a public forum was the appropriate place to do this. Instead, I would have a few pints, air my grievances aloud to a select group of friends and then either let it go or do something about it. We seem to overlook the fact that employers are not owners. We as employees have the right to leave at any time, consequence free. We are not going to be tied to the stock and whipped for deserting our jobs. If you don't like the way something is done at work, QUIT!! Or file a formal complaint! But our AMR friend didn't do this, no. Instead she chose to go to use a public forum to trash her employer. And here we find the difference between ranting with some friends over a beer and utilizing a public forum like twitterbook. Our words tend to evaporate into the air but our posts may live on in infamy. In my eyes, railing against your employer on line is on par with setting up a podium at the front door of your office and spouting off for God and all the world to hear. I'm hoping that if I ever have a business and a disgruntled employee did that to me – I'd be able to fire them. After all, if they are truly that unhappy, they could always quit. And be flogged.
jeffphenderson

How about making your company a desirable place to work and treating your employees fairly and with respect, and maybe they won't have anything to complain about on Facebook.
wmartin46

Without more details, it's hard to say much about this case. It might be interesting, however, to consider how a company might deal with such a situation without violating an employee's “rights”. For instance, it obviously could just ignore the comments. Or, if the comments were provably false, the company could have a letter drafted to the employee that rebuts his/her claims, point-by-point. In the presence of counsel, manager and department head, the letter would then be discussed, in order to determine the response of the employee to the company's point-of-view on each of the posted comments.This leads to the question of continued employment. If an employee is unhappy, shouldn't the company, after determining that the employee's unhappiness is not caused by any “wrong”/”illegal” actions on the part of the company, invite the employee to seek employment elsewhere? If termination is no longer a legal option, would “counseling” about other job opportunities in other companies not be appropriate?
http://twitter.com/RoasterBoy Karl Hakkarainen

It seems that the NLRB intervened because the employee was a union member. In most states, we are employees at will. Without union, contractual, or other protections, it seems that we could be fired for any cause (or no cause at all). This was a settlement agreement, not a ruling with broad direct application.Someone (either a fired employee or a business) would likely have to file a suit to see if this ruling affects all employees and employers.Full disclosure: IANAL
mundoresink

Funny how the underlying questions remain at large: 'why is this person badmouthing my company?' 'What have we done to make him/her feel that way?' 'What can we do to make him/her happy in the workplace?'Criticism – even when unfounded – can be a most valuable mirror. Treat is as an opportunity, not a threat. And get to the root instead of fighting the symptoms.
http://twitter.com/drivingsales DrivingSales – Jared

There is a huge difference between (a) the protected right of employees to organize, which would include discussing poor work conditions with other employees, online or in person, and (b) publicly disparaging your employer, online or offline, to non employees.This article glosses over that distinction, yet that distinction is really the basis for the ruling (from my “non-attorney” point of view.)What if the person in question wasnt talking to other employees but broadcasting their message to customers or other non employees? Would they be still protected arguing that they were organizing with other employees? Doubtful.Could arguments get as detailed as the persons privacy settings on facebook? If your privacy settings are locked down are your posts really in the public domain? Is that any different than complaining about your boss to a friend at a bbq? Could your boss fire you for that? What if the negative information about your employer was on your popular personal blog? Would that change the situation? I would hope so.Anyhow… the bottom line is that from the information shared the ruling was not about disparaging employers, as the title suggests, but about a workers right to organize.