Can We Fire Employees for Social Media Comments?

In a number of recent cases involving employees terminated for profane tweets and churlish Facebook posts, the NLRB has sided with employers.

Posted by Joe Gerard in on August 3rd, 2011

Employees who turn to Facebook, Twitter and other social media sites to air frustrations about their jobs and employers may want to think about the consequences before doing so. When it comes to employers, many are concerned about what will happen to them if they discipline employees – or fire them, for comments made online.

In a number of recent cases involving employees terminated for profane tweets and churlish Facebook posts, employers have been given the upper hand. But until recently, there has been little guidance as to when employers can rightfully terminate an employee for their bad online behavior.

Can employees be fired for complaining about their employer on sites like Facebook?

In some cases, yes they can. An article written by Eric B Meyer on the Employer Handbook blog, “Buh bye: Labor board okays firing some Facebook whiners,” explains some of the recent advice from the NLRB when it comes to whiny employees on social media sites like Facebook:

The National Labor Relations Board is softening its position on employers who fire employees for rants on Facebook.

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Employees who merely gripe can get canned.

Three recent advice memoranda from the NLRB (herehere, and here) reaffirm that employees who engage in protected concerted activity online are protected against employer discipline. Conversely, employees who merely gripe about their employer online are subject to discipline, up to and including termination.

What is protected concerted activity?

Good question. In the advice memorandum from the NLRB for a case involving the firing of a Wal-Mart employee for comments made on Facebook, the organization outlines what is considered protected concerted activity:

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.” Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self organization.’” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted. Comments must look toward group action; “mere griping” is not protected.

For example, if a person complains about their job or their boss on Facebook and is only talking to their friends or family about the issue, their actions aren’t protected. This means that their employer can fire them. These rulings prove that employees have to take responsibility for their actions and be aware of what they are posting – and who could be reading it.

So there you have it, depending on the type of comments made by an employee on Facebook, Twitter and other social media sites, they can be fired. For more guidance on this subject, the Huffington Post article “Facebook Firings: Feds, Managers Navigate ‘New Territory’ In Employment,” reports that according to Nancy Cleeland, spokeswoman for the NLRB “the NLRB will probably release its report on Facebook cases sometime in the coming weeks. Careful not to call it a guide, Cleeland said it will merely detail particular complaints that have come before the agency and what the outcomes were.” As more attention is drawn to these types of cases, their report will certainly be welcome.

Joe Gerard
Joe Gerard

CEO, i-Sight

Spend my days showing off the i-Sight investigative case management software and finding ways to help clients improve their investigations. Usually working with corporate security, HR & employee relations, compliance and legal teams.

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