Is it legal to fire an employee for things he posts on his Facebook page? That's the most common question that I am asked by employers in the context of social media. And no wonder; the stories of employees who disclose confidential company information, rant about coworkers or customers, and disparage supervisors make news headlines more often than I can post about them. Although the general answer is that an employer can terminate an employee for his or her Facebook posting, there are exceptions to that general rule. And the NLRB recently called this general answer into question when it filed a complaint against an employer who, the NLRB claims, enforced an overly broad social-media policy by unlawfully terminating an employee for her Facebook posts, thereby violating the National Labor Relations Act.
But a recent story from Pittsburgh, Pennsylvania gives employers yet another reason to worry. As reported by the Pittsburgh Tribune-Review, one small-business owner may have pushed the ball across the line from the other side when she (allegedly) made comments on her Facebook page targeting an employee who'd complained that she'd been harassed by her supervisor.
A former waitress at the tavern claims that she complained to Human Resources that a supervisor had made an inappropriate sexual comment to her. A week later, she claims, she read comments on the tavern owner's Facebook page that the employee believes were targeted at her. The waitress quit the next day and shortly thereafter, filed suit. The alleged comment did not mention the waitress by name: "Why do people think and believe it is OK to lie and hurt people that have never hurt or lied to them!" The employee felt that this comment and the reactions of coworkers were also directed towards her.
So, what are the take-aways for employers? There are several.
First, get an effective social-media policy. Yes, I know, I've said it before. But when I hear a story like this, I can't help but repeat myself. Not only should employers have policies that address what is and is not appropriate use of social-networking sites such as Facebook. But it's not enough to simply have a policy--employees and supervisors (and, in this case, owners) need to be trained on the policy and should be well informed of the potential problems that poor online judgment can cause. (See Sample Social-Media Policy pdf).
Second, this story supports my belief that employers should discourage supervisors from being Facebook friends with their direct reports. If this story is true, it could have been prevented had the employee not had access to the bar owner's Facebook page. Similarly, other employees would not have been able to fuel the fire with their own comments if they had not been friends with the boss.
Third, this story is an excellent reminder about the critically important role of Human Resources when an employee makes a complaint of inappropriate conduct in the workplace. This role cannot be overestimated. Whenever an employee makes a complaint about what he or she believes is discriminatory or harassing behavior at work--especially by a supervisor--HR must jump into action by promptly launching a thorough investigation and then taking effective corrective action.