September 28, 2009
Employment Law and the Use of Facebook, MySpace, LinkedIn, Twitter, Etc.
One developing area of employment law made headlines in Chattanooga recently when it was announced that the Chattanooga Area Chamber of Commerce’s chief lobbyist and public affairs official resigned after he was placed on unpaid suspension because of a posting he had placed on Facebook®. The employee had made a post on the eighth anniversary of 9/11 which included ethnic slurs and profanity directed toward the persons who carried out the 9/11 attacks, and he implied that severe retaliation is called for against those who “came at us.”
This incident is not isolated in the area of employment law. An August, 2009 survey from Proofpoint (an internet security firm) said that, among larger employers (those who employ 1,000 or more employees), 17% of employers reported having disciplinary issues with employees in the past year based upon improper use of social networking sites, with 8% of the employers reporting that they had terminated the employment of at least one employee for such incidents. This represents a doubling of such terminations from the previous year.
Another recent story is illustrative. Cisco offered a job to a prospective employee, and that prospective employee then said on Twitter®, “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” Soon thereafter, the prospective employee received a response from someone in Cisco’s management, which said, “Who is the hiring manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web."
In another example, an employee was fired recently when she took a sick day, telling her employer that she was too sick to work and was only able to “lie in the dark.” However, the employer learned that she had posted repeatedly on Facebook® during her sick day, and she lost her job due to the “trust issues” which this created. In another example, an employee took a sick day when he was hung over, but he made the mistake of bragging about his condition in a Facebook® post. He lost his job. Finally, there is the case of a Burger King® employee who posted a video on YouTube® which showed him bathing in the kitchen sink. You have to wonder what he was thinking?
These examples lead to a relevant questions – what is an employer allowed to do when it learns about such uses of internet “social media” as Twitter®, Facebook®, YouTube®, MySpace®, LinkedIn®, and the like? Also, how far may an employer go in “researching” (or, as the employees might say, “spying”) via such sites?
Generally speaking, so long as the employee is an “at will” employee, the private employer almost certainly faces no legal repercussions because of such terminations. It is generally understood that such sites are considered “public,” and the employee making the posting cannot claim any reasonable expectation of privacy in the post. Different rules may apply in the case of public employers, which could lead to a due process need for notice and an opportunity to be heard for the employee. What about “freedom of speech” and the fact that the postings are done on the employee’s “own time?” Thus far, the cases and commentators seem to indicate that these factors do not provide any viable legal claims for “at will” employees.
Employers should be careful to avoid disciplining an employee for any speech which could be construed as “union organizing” speech. In addition, if the employee in question might raise a claim of whistleblowing or retaliation, the employer is cautioned to seek specific legal advice from a competent employment lawyer before acting. Bear in mind that employees may argue that a termination on these grounds is actually a pretense for unlawful retaliation or discrimination.
This is a developing area of the law, so stay tuned for more updates. In addition, the reader may want to review the “Privacy in the Workplace” article (2008), which is listed separately on this web-site under “Articles.”