This week on IFB, I got chatting with Nancy Sprattlin of Sprattlin Castor LLC, who is an employment lawyer. I sent Nancy the following question:
I had a discussion with some bloggers who works in the non-profit sector. One mentioned several of her coworkers had been laid off and fired for saying negative things about the company/coworkers on Facebook. While she's never used her social media tools in that matter (and wouldn't!), she's super concerned about being penalized by her employer for just HAVING a blog/Facebook/Twitter.
Is it legal for a boss/company to penalize you for having these? (Even if they have no relation to your job or don't present a conflict of interest?)
If a blogger feels that they've been reprimanded in the job for utilizing social media in their personal life, what can they do about it?
Most states enforce “at will employment” to some degree. New York for example is an employment at will jurisdiction. At will employment means that employees may quit their jobs at any time and for any or no reason at all. By the same token, employers may fire or layoff an employee for any, no, or even unfair reasons.
An employee may prove wrongful termination when an employer fires or lays off the employee for illegal reasons. This might include violation of state laws, discrimination laws, whistleblower laws and many others.
At any rate, there are several factors that would need to be assessed in determining whether their termination was unlawful as follows:
a) Structure of the companies at issue:
1) is it a private company (including not for profit): They are typically at will termination for any reason.
2) is there a Union Contract (which would protect those employees from wrongful termination reasons – e.g. blogging may be deemed a protected activity), or did they work for the Government (generally more protection, privacy matters – like blogging on personal computer – are protected by the 1st amendment).
b) Nature of postings or blogs: what exactly were they posting online? It is illegal to violate public policy when firing a worker — that is, to fire for reasons that society recognizes as illegitimate grounds for termination. Before a wrongful termination claim based on a violation of public policy will be allowed, most courts require that there be some specific law setting out the policy. Some states protect whistle-blowers who complain that their employer broke any law, regulation, or ordinance at all. Other states give employees whistle-blower protection only when they report that their employer broke certain laws — like environmental regulations or labor laws. New York has a whistle-blower statute. So depending on the nature of the blog and whether it falls within the purview of that statute, those employees could have a legal cause of action under that statute. They would need to follow up with a plaintiffs’ employment attorney as discussed above. Or for more information about whistle-blowing, visit the National Whistleblowers Center or The U.S. Department of Labor's Office of the Whistleblower Protection Program.
c) Whether the Companies at issue had reasonable social media policies which included the right to restrict use of company equipment and spending company time on non-work activities. These policies need to have been communicated to the workforce and consistently enforced.
In sum, posting company information or negative comments about a company have been grounds for firing in the past, with companies construing the posts as violations of company policy. However, social media laws are evolving quite rapidly based on the factors discussed above. I would strongly recommend that those bloggers who were terminated to meet with a plaintiffs’ employment attorney and discuss their individual situations if they believe their termination was unlawful.
As for the blogger who is concerned, unfortunately employers are not required to provide a reason or explanation when terminating an at-will employee. If she has an employment contract with her employer or is covered by a collective bargaining agreement, she has more rights, but the company still has the right to fire her for cause and violation of reasonable company policy is cause. Otherwise, she can be terminated for a reason or for no reason at all. But a company policy that prohibits an employee from having a facebook page may be too broad and could be challenged as unreasonable.
Disclaimer: Nancy Sprattlin is not giving me, nor you, the members of the IFB community, legal advice. In order for you to determine whether you have viable causes of action under federal, New York or any other state laws, you really need to speak with a plaintiff’s employment lawyer in your jurisdictions with all the details of your respective situation.
Image by West.M