Can you fire someone or get fired for social media posts?

Does anyone remember what our mothers used to teach us? “If you can’t say anything nice about someone, don’t say anything at all.” Or perhaps I’m dating myself. After the year we’ve just had, I wonder.

But, I digress. We’re here to talk about social media posts and to discuss the questions: Can you fire someone or can you get fired for online posts? Well here’s the skinny.

These days you can comment about anyone, anything, anytime, anywhere and have it zooming around the planet in seconds. In so many ways, this is a powerful and wonderful thing. And in so many ways, this is a powerful and terrible thing.

The National Labor Relations Board (NLRB) has received thousands of complaints about this issue, so many in fact that its attorneys have issued several reports on when you can and when you can’t fire someone for a post. So, employees and employers, please pay attention.

The most important language to remember is “protected concerted activity.” This means that employees have the right to criticize an employer or an employer’s policies if they are discussing it with other employees. In that case, they are protected and may not be fired or punished for participating in the discussion. However, if an employee makes a post critical of his or her employer or employer’s policies or decisions just to vent their anger or frustration, they are not protected and can be fired.

It is a subtle distinction, but an important one. It basically hinges on how many people are involved in the “discussion.” More than one person from a specific company and it’s a “discussion” and, therefore, protected. Just one person complaining and it’s not protected. It has to be a collective effort; it has to involve more than one person.

So, if you’re an employer thinking about firing someone for a malicious post, or an employee who has been fired for a post, check the criteria. In either case, you may want to contact an attorney. And, check the NLRB’s website; there’s a lot of information there.

Some employees seems to forget that whatever they post, wherever they post it, it can be seen by just about anyone. It doesn’t make a lot of difference what your privacy settings are because anyone can capture screen grabs and send them anywhere.

So, however it happens, what you post can and most likely will get back to your boss. If there’s an issue at work with a policy or a horrible supervisor, talk to your co-workers. Make it a concerted effort and it is a protected right.

Yes, we have a first amendment right to free speech, but remember two things. One, that right has to do with your interaction with the government, not private business. And two, just being rude or mean is not productive. (Is it somehow easier to say something mean or rude when you’re not saying it to their face?)

Be reasonable and fair and most employers will respond positively. Most employers do not want their workers to be unhappy; that’s counter-intuitive and unproductive.

Employers: please develop a social media policy. Do you have company FaceBook pages or Twitter accounts? Make it clear to your employees what is appropriate, what is not, when to post, when not to post, etc. Also, it’s unrealistic to think workers these days won’t check social media accounts during their workday. So accept the reality and make the rules clear.

Bottom line folks, let’s all think before we post. That one step might save headaches down the road.

 

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