When is it okay to discipline or fire an employee because of something he or she posted on a social media website? Although courts and the National Labor Relations Board are continually setting new precedents, some broad principles and policies can help your business stay out of trouble most of the time. Here are some points to consider.

1. Toll Free: 877.880.4477
Phone: 281.880.6525
www.hrp.net
Think Twice Before Firing an Employee
for Social Media Behavior

2. www.hrp.net
For individuals and businesses, social media can be a great boon — but it can
also be destructive. You can't control what a disgruntled customer might say
about your business on social media. But what if one of your employees
trashes your company online or reveals proprietary information? Can you fire a
worker who posts something that embarrasses your business or that's so
controversial it draws negative attention to your company? What can you do?
The first and most basic step is to develop a realistic social media policy —
with the help of your attorney — that's not too broad or too restrictive and
that spells out consequences for those who violate your rules. With a policy in
place, be sure to require all employees to read it and acknowledge in writing
that they understand the terms. The policy not only puts employees on alert,
but provides a framework for disciplinary action.
It's crucial to have the policy be part of your handbook, but you should also
back it up with occasional reminders to your workforce to watch what they
post.

3. Concerted Activity on Social Media: "The New Water Cooler"
www.hrp.net
The NLRB defines concerted activity as when two or more employees take
action for their mutual aid or protection regarding terms and conditions of
employment. A single employee may also engage in protected concerted
activity if he or she is acting on the authority of other employees, bringing
group complaints to the employer's attention, trying to induce group action,
or seeking to prepare for group action.
Further, the NLRB cites three examples of protected concerted activity:
• Two or more employees addressing their employer about improving their
pay.
• Two or more employees discussing work-related issues beyond pay, such
as safety concerns, with each other.
• An employee speaking to an employer on behalf of one or more co-
workers about improving workplace conditions.

4. What Should the Policy Include?
www.hrp.net
It's probably wise to avoid getting too detailed in your descriptions of specific
unacceptable communications. For one thing, you'll never address every way
an employee could damage your reputation via social media. However, a
statement like the following isn't overly prescriptive:

5. www.hrp.net
"Although not an exclusive list, some specific examples of prohibited social
media conduct include posting commentary, content, or images that are
defamatory, pornographic, proprietary, harassing, libelous or that can create
a hostile work environment.“
You may want to include a broad statement, such as: "Social media is a public
activity and [employer name] employees should not do anything on social
media that is inappropriate or harmful to the company, its employees or
customers."

6. Don't Focus Too Much on the Downside
www.hrp.net
Your policy shouldn't be entirely negative — that is, only telling employees
what they can't say. Doing so risks making employees feel disrespected, and
perhaps also disinclined to use social media to say good things about your
company.

7. www.hrp.net
"Employees engaging on social media are
the best marketing influencers for new
products, promotional deals, new
locations, etc.," according to Whitney
Kasle, a new media marketing expert. Used
wisely, your staff can do much to enhance
your business reputation on social media
and even increase traffic to your business.
While some employers may choose to bar
employee use of social media at work,
others may be silent on the issue —
preferring to let productivity speak for
itself. In other words, an employee who
spends hours at work posting to Facebook
would flunk the productivity test in the
same way that an employee who lingers all
day in the break room probably would.

8. Notable Cases
www.hrp.net
Let's take a look at what happened in several actual cases where social media
postings resulted in job termination.
1. In 2012, an employer fired a staff member who repeatedly missed periods
of work, claiming the lingering effects of a debilitating back injury.
After the employer saw Facebook photos of that employee at a fair taking
part in physical activities on a day when she claimed to be in too much
pain to come to work, the employee was terminated. A long legal battle
followed, but the termination was upheld. (Jaszczyszyn v Advantage
Health Physician Network, U.S. Court of Appeals for the 6th Circuit)

9. www.hrp.net
2. In another case, the National Labor Relations Board (NLRB) upheld the
termination of a bartender who ranted on Facebook about his job
conditions and his employers (calling them "rednecks" among other
things). The termination was upheld on the basis that there was no
"concerted activity" because the bartender acted alone instead of with
other employees. (See sidebar for an NLRB explanation of concerted
activity.) The test in this case was whether the activity was "engaged in
with or on the authority of other employees and not solely on behalf of
the employee himself." (NLRB Div. of Advice, No. 13-CA-4688)
3. A third case revolved around union organizing and resulted in the NLRB
refusing to support the termination of an employee who railed against his
employer on Facebook. The language he used was replete with the "F
word." However, a unionization vote was about to occur and the NLRB
deemed that to be a more significant factor than the virulence of the
language.

10. www.hrp.net
To determine whether the diatribe described in this case constituted
protected "concerted activity," the NLRB took into consideration multiple
factors, including:
• The place of the discussion,
• The discussion's subject matter,
• The nature of the employee's outburst,
• Whether the employer provoked the outburst,
• Employer hostility to unionization, and
• Whether the discipline imposed (that is, termination) was typical of that
imposed for similar violations or disproportionate to the offense.
Pier Sixty, LLC and Hernan Perez, 362 NLRB 59)

11. www.hrp.net
4. Finally, in yet another case, the inappropriate action of a supervisor
shifted the outcome in favor of the employee. A U.S. Customs Border
Patrol employee was fired for "poor judgment" after using Facebook as a
forum for trashing his employer. To gain access to the employee's
Facebook page, a supervisor used a woman's photo to create a phony
Facebook identity and then sent it to the employee with a "friend
request." The employee accepted the request, which made his comments
viewable by his new "friend."
The termination was reversed by an arbitrator, who ruled that the tactic
used by the supervisor violated the Stored Communications Act. (Trapp v
DHS, FMCS Case No. 12-56290)

12. www.hrp.net
Firing based on social media posting is complicated. Dozens of new cases are
being litigated and arbitrated all the time — underscoring the importance of
implementing a strong, attorney-reviewed social media policy. And whether
you implement a policy or not, be sure to consult your attorney before
terminating an employee for social media activity.

13. 14550 Torrey Chase Blvd., Ste. 360 Houston, TX 77014 USA
www.hrp.net
E-mail : info@hrp.net
Toll Free
Phone
Fax
:
:
:
877.880.4477
281.880.6525
281.866.9426