Can employees be fired for Facebook post?

By Makana Risser Chai                                        © 2012 by Makana Risser Chai – all rights reserved

Facebook, Instagram and Twitter are fun ways for us to connect with friends, but when employee postings interfere with the employer’s business, can they be fired? Recent cases say yes – IF the employer does it the right way.

Employee posts can interfere with business in a number of ways. If employees are posting or reading posts during company time, they are not doing their jobs and essentially are stealing from the employer. Research shows on average workers take 64 seconds to get back to where they were after an interruption from email, IM, tweets, and posts. That doesn’t include the time reading and responding. Assuming an employee responds to 4 non-work related emails or posts an hour, each taking 3 minutes, plus the minute to get back to work, that is 16 minutes an hour or 2.1 hours a day!

In times like these, workforce productivity is absolutely essential. Anything less should be grounds for counseling, warning and discipline, up to and including termination.

Even if posted from home, the content may violate company rules. One recent case involved an employee posting confidential trade secrets. That should be grounds for immediate termination. A post might be defamatory. One blogger posted that his boss did business by “lying and cheating.” If he couldn’t prove it, that’s illegal.

Continental Airlines pilots posted harassing comments about a co-worker on a web forum. The victim forwarded the comments to her supervisor at the airline, who did nothing. The court held the employer should have disciplined the offenders even though the company had nothing to do with the web site.

Postings may invade privacy, by revealing private information about co-workers to the public, or they might “bring disrepute” upon the company. One employee ranted on her blog about Vice Presidents at her company. She didn’t identify them by name, but it was easy to tell who she was calling a “moron” and “f-ing a-hole.” If she was a high-ranking employee, this might be considered to bring disrepute upon the company.

Another case involved a student teacher was removed from her position for “lack of professionalism.” The school district was unhappy that she disparaged her supervisor on her social media page. They also disapproved of her connecting with her students on her page, which among other things showed her in a drunken pose at a party.

Generally it is an illegal invasion of privacy for employers to use their employees’ private lives against them. However, when private life impacts the company business, employers can take action if they follow a few simple steps.

What Employers Can Do: Read your current policy. Don’t have one? Have one but it needs updating? Contact your attorney to write or re-write your policy. Depending on your organization’s culture, you can prohibit employees from visiting any non-work websites during working time, and from reading or writing instant messages, tweets or personal emails, or you can limit them to “reasonable use,” but it’s best to define the limits of reasonable use. The policy can prohibit employees from postings from home that violate any other company rules, such as trade secret or harassment policies; invade the privacy of co-workers, including naming them or posting their pictures without their permission; or that are otherwise illegal, such as defamation.

The policy also can prohibit postings that bring disrepute upon the employer, but this provision should be enforced with advice of an attorney as it applies to only a select few jobs in restricted circumstances.

The policy should state that violation is grounds for discipline, up to and including termination. Employees should be given a copy of the policy, sign that they have read and understood it, and have a copy kept in their personnel files.

If employees do violate the policy, it is important to be consistent in enforcing it. Follow company policies for discipline and termination. In most cases this should include giving written warnings, but some violations may be grounds for immediate termination.

As someone who is on Facebook and who receives personal emails throughout the day, I can understand why employees want to access these at work. But as an employer of people who did check their email constantly, it irked me to be paying for non-productive time. Each organization needs to find its own happy medium, but only after considering the legal risks and financial costs.

 

 

Makana Risser Chai practiced employment law for 20 years and is an HR trainer and consultant. Her clients include government agencies, small businesses and Fortune 500 enterprises. She can be reached at 808-282-2743 or contact us.

The foregoing is intended for general background information on employment law and is not intended to substitute for legal counsel. For specific advice on your situation, contact the employment lawyer of your choice.