When you can’t fire an employee for a derogatory Facebook postings

You can't fire me when...
You can’t fire me when…

We’ve been asked about the leeway you have with derogatory Facebook postings. So we put this doc together that provides guidance from the National Labor Relations Board.

– Jeff Najar, Biker Pros

These days almost everyone leaves a digital footprint. It can be anything from Twitter, Facebook, Instagram, Pinterest or LinkedIn post to posted comments and reviews on products, news articles, company websites, or other people’s social media pages.

It’s not too hard for employers to find employees online. And what can employers do with that information once they discover it?

Are there any protections for what an employee posts?
The government protects workers’ rights to say what they want about their work, even if it’s in a spiteful and insulting tweet or post. It’s illegal for an employee to be fired for a post about working conditions, whether it’s pay, hours, assignments, difficult supervisors, dress code, or any other issue. So employers shouldn’t try to restrict workers’ freedom of speech or retaliate if there’s a post they don’t like.

What is protected – Workers who complain about employers on social media can’t be fired if they’re involved in what’s called “concerted activity,” or joining with fellow staffers to improve working conditions, according to the National Labor Relations Board, an independent federal agency that safeguards workers’ rights.

What this means is that comments about working conditions on social media is completely protected. So, if you see a tweet… “I hate my job,” the employee cannot be fired.

And businesses can’t resort to disciplinary measures including suspensions, reprimands, pay cuts and promotion denials.

What is not protected – Posts encouraging insubordination, disparaging of the companies’ products or services or reveal trade secrets or financial information aren’t protected.

Employees can also be fired for posting information about clients or customers as well as if their posts are racist, homophobic, sexist or discriminate against a religion.

2 Actions to Consider

  • Review your social media policy with a HR specialist or your lawyer. Make sure you aren’t violating federal, state or local laws.
  • Firms need written social media policy spelling out what employees can post. It needs to be specific and with examples of what’s acceptable.

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