Can an employee be fired for violating a social-media policy that doesn't exist? This is a question that many employers have faced. And, if the NLRB continues to scare employers away from social-media policies, it's a question that will continue to arise.
The answer, simply put, is "yes." Employers need not have express written policies on each and every possible workplace infraction. For example, if an employee decided he would speak only Vulcan at work, he surely could be terminated without legal consequence. Similarly, most employers do not have a policy prohibiting employees from walking around the office on their hands. Yet, terminating an employee for clown-like conduct would not trigger a lawsuit.
The same concept applies when it comes to social media. If an employee posts the employer's confidential information on the employee's Facebook page, the employee can be terminated, right? Whether there is a policy that specifically prohibits employees from leaking confidential information via social media is irrelevant. So long as the adverse action is not being taken for unlawful reasons, a written policy is not necessarily required.
That said, whether an employer can do something is often quite different from whether it should do it. This is particularly true when it comes to social media.
A recent example of this dichotomy involves a meteorologist from Shreveport, Louisiana who was fired for allegedly violating her employer's unwritten social-media policy:
A broadcaster at a news station in Louisiana politely responded to a Facebook comment about her hair. She lost her job over it, via a policy that wasn't codified. Was that legal? Was it fair?
You can read my answer to both questions at Ragan.com.