O'Connor & Schmidt (2014 OBTC) "Facebook Fired:" Educating Students About the Professional and Legal Implications of Personal Social Media Use on Employment Status
EDUCATING STUDENTS ABOUT
THE PROFESSIONAL AND
LEGAL IMPLICATIONS OF
PERSONAL SOCIAL MEDIA
USE ON EMPLOYMENT STATUS
Kimberly O’Connor, J.D
Gordon Schmidt, PhD.,
Indiana University Purdue University Fort Wayne
• Sites that allow you to share user generated
content with others
• How many of you have a Facebook account?
• Do you set your privacy settings?
Social Media and Work
• Do you think your employer should be able to
look at your social media posts?
• Do You think that First Amendment Freedom of
Speech protects all forms of speech, including
what is posted online?
• Social Media usage can have impact on people’s
• A number of firings and disciplining of workers
based on worker’s posts
Law and Social Media Terminations
• With the widespread use of social media we are
seeing an increasing number of people fired for
social media posts
• This can lead to legal cases in the courts and
NLRB of appropriateness of such actions
• We will discuss some of the major results so far
• One important aspect is the job classification of
• We will now look at example situations based upon
actual cases that courts or the NLRB have ruled on
• Looking at the example answer the question:
– Can a person be legally fired for this behavior?
• Have you seen an employment-related social media
post by one of your connections in the past?
• At – Will - An employee whose
employment is for an indefinite
duration and can be hired or fired at
the employer’s discretion. Also known
as a private sector employee.
• Union – A worker whose wages,
hours, and working conditions are
negotiated through a collective
• Public Employees – A
person who is employed in the public
sector and whose work is controlled by
governmental bodies, whether at the
federal, state, or local level.
National Labor Relations Act – “NLRA” Section 7 of
the NLRA gives employees the right to engage in
“concerted activities” for their “mutual aid and
“Protected Concerted Activity” includes two or more
employees acting together to address a collective
employee concern about work terms or conditions.
Employers cannot take action to restrain such activity.
DESIGN TECHNOLOGY GROUP, LLC, 359 NLRB NO. 96 (APRIL 19, 2013): THE NLRB FOUND
THAT EMPLOYEES’ FACEBOOK COMPLAINTS CONCERNING SUPERVISOR’S TREATMENT OF EMPLOYEES AND
SAFETY CONCERNS WERE PROTECTED CONCERTED ACTIVITY.
• BMW Dealership held a sales event to
introduce a new BMW design.
• A salesman posted negative
comments, along with pictures of the
• Also, the salesman posted pictures and
comments about an accident at a Land
Rover dealership also owned by the
• NLRB held that the Land Rover posts
were not “protected concerted
activity” and by themselves enough to
affirm the termination.
Karl Knauz Motors, Inc., 358 NLRB No.
164 (Sep. 28, 2012).
Public Employees and Free Speech
• The First Amendment
states that Congress
shall make no
freedom of speech
• For Public Employees
First Amendment rights
exist for matters of
“Public Concern” only
Payne v. Barrow County School
• Georgia High School English Teacher, Ashley Payne,
posted pictures of her summertime European vacation
on her Facebook page. She also posted a status update
with the word
• Payne had her privacy settings set to “Private.” She had
no students as FB “Friends.”
• A Parent complained. The school corporation gave her
the ultimatum, resign or be fired. Payne resigned and
then filed suit.
• GA court held that her contract was up by the time she
had her day in court. Case was moot.
• Do you think this outcome was fair?
• How should your students consider these issues?
Snyder v. Millersville University,
(2008 Pa. Dist. Ct.)
• Student Teacher Stacy Snyder was in her last
semester of college at Millersville University in
• She was assigned to student teach High School
English. She was warned not to share social
media with her students
• Snyder had a MySpace page and told her
students about it. They accessed the page and
found pictures like her “Drunken Pirate” picture
• Millersville refused to give her a degree in
Education. She instead received a degree in
Organizations and Social Media Policies
• 57 % of organizations have social media policies
• NLRB rulings suggest appropriate legal language
for such policies
– Language must not restrict employees’ right to
speak to one another about terms and conditions of
– Social Media policies should give employees
examples of what an organization deems to be
inappropriate online speech (e.g. employees should
not divulge trade secrets online)
• Understand What Type of
Employee You Are and
What Laws May or May
• Know YourEmployer’s
Social Media Policy and
• Set Your Privacy Settings
Be Cautious About What
You Post, Even On Blogs
and Other’s Pages.
What Can You Do To Protect Yourself?
Debrief: What have we learned?
• Where you might use this in a class
– Lectures related to legal issues of employment
– Lectures related to social media policies, HR policies,
and employment decisions
– Discussions related to careers and career
• Where do you think this might fit in the classes
• What have you gained from this session?
• What are your thoughts?
• Other ideas on activities for this topic?
Feel Free to Ask Questions Later
• Kimberly O’Connor
• Gordon B. Schmidt
• Presentation is on Slideshare