One question that is
being increasingly asked by our firm’s business clients is: Can I terminate an
employee due to comments posted by the employee on Facebook or Twitter?
While the
instinctive answer is “yes” since Virginia is an at-will employment state, the
actual answer can be much more complicated.
Each case is different, and the answer to the question depends on the
type of employer/employee, as well as the actual content posted by the employee.
Some speech may be protected under the 1st
Amendment to the U.S. Constitution (i.e. speech about matters of public concern
by public employees), and some speech may be protected as “concerted activity”
under the National Labor Relations Act (NLRA). It is beyond the scope of this article to
identify exactly when and how social media postings may be protected. Therefore, before firing an employee on
account of a social media posting, the employer should consult with an attorney
to determine if the speech is protected under federal or state law.
There is no case law
in Virginia which is directly
instructive on the issue of whether an employee can be terminated for social
media postings. The U.S. District Court
for the Eastern District of Virginia recently stopped short of answering the
question as it pertains to public employees. In Bland, et al. v. Roberts,
2012 U.S. Dist. LEXIS 57530, several deputy sheriffs filed suit alleging that
they were improperly let go for having “Liked” the sheriff’s opponent on
Facebook in a recent election. They argued that the Facebook posts
concerned matters of public concern and, therefore, were protected speech under
the First Amendment. The court ruled that “Liking” a post on Facebook is
insufficient speech to merit First Amendment protection, and therefore did not
address the more important question of whether written Facebook posts can be
protected free speech. The case has been
appealed to the U.S. Court of Appeals for the 4th Circuit.
There is a body of
administrative law rulings by the National Labor Relations Board (NLRB) in
which the NLRB has determined that employees were terminated in violation of
the National Labor Relations Act (NLRA) for derogatory posts made on Facebook
about their employer. In Hispanics
United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the NLRB affirmed the
ruling of an administrative law judge that the termination of five employees,
due to posts made on Facebook, was in violation of the NLRA. The ruling can be accessed from the NLRB website
here: http://www.nlrb.gov/cases-decisions/board-decisions.
The NLRA provides
that it is an unfair labor practice to restrain employees from engaging in
“concerted activities” for the purpose of collective bargaining or mutual aid
or protection. In this case, one employee placed a post on Facebook
regarding a fellow employee, and four other employees commented on the
post. These employees were subsequently
terminated on the basis that posts constituted bullying and harassment of the
employee-subject, and violated the employer’s policy on harassment. The terminated employees initiated an action
pursuant to the NLRA, contending
that the posts on Facebook amounted to protected “concerted activity” under the
NLRA. An Administrative Law Judge
agreed, stating that employees have a protected right to discuss matters
affecting employment amongst themselves, and the NLRB affirmed the Judge’s
ruling. The employer was ordered to reinstate the employees and pay back-wages.
Accordingly, if you intend to terminate an employee on account of social
media postings, you should first consult with an attorney to determine if the
speech is protected. In every case, the
content of the posting and the nature of the employment should be assessed to
determine the employer’s legal rights.
As added protection, the employer should consider adopting a social media
policy for its employees, with the intended effect of discouraging
controversial postings. This policy
should be written in consultation with an attorney, as the NLRB has struck down
several social media policies that are not overreaching in nature. In addition,
the employer may want to consider including social media restrictions in its employment
agreements.
If you need legal help with employment matters relating to social media,
Gross & Romanick can assist you.
Send us an e-mail to law@gross.com or
contact us at 703-273-1400.
