Employment Law Update: Fired for Facebook? Terminated for Tweeting?

One of Dave Albo – Attorney’s most robust practice areas is employment law, http://www.albo-oblon.com/practice-areas/employment-law/, serving both employers and employees, whether in government or in the private workforce. As with any client, we thoughtfully advise those seeking employment counsel based on the law, company rules, what the client has said or done to allegedly violate those rules, and what they should NOT do as we proceed in protecting their interests…

So as an employee, can you be terminated for trashing your company on Twitter? Fired for defaming your boss on Facebook? On its face, the question of whether an employee can be terminated for posting negative comments about an employer on social media would seem to be a resounding YES – of course you can get canned for commenting! If you don’t like your employer or its policies, why would you want to continue to work there? Virginia embraces “at-will employment.” You may leave at any time – and don’t let the door hit you too hard on the way out! There is no point in sticking around and making public complaints!  Still, the answer may not be so simple after all.

For example, employees have a duty to be loyal to their employers during the time they are employed. “We have long recognized that under the common law an employee, including an employee-at-will, owes a fiduciary duty of loyalty to his employer during his employment,” Williams v. Dominion Tech. Partners, LLC, 576 S.E.2d 752, 265 Va. 280 (Va., 2003). Part of this duty of loyalty could include a duty not to defame, or even speak ill of the company, particularly in a public venue such as social media. Such activities could constitute insubordination.

Moreover, if a person were fired for this reason, they would likely seek unemployment. And in considering whether to provide unemployment, the Virginia Unemployment Commission considers whether the individual was fired for “misconduct.” “[A]n employee is guilty of “misconduct connected with his work” when he deliberately violates a company rule reasonably designed to protect the legitimate business interests of his employer, or when his acts or omissions are of such a nature or so recurrent as to manifest a willful disregard of those interests and the duties and obligations he owes his employer.” Wells Fargo Alarm Services, Inc. v. Virginia Employment Com’n, 482 S.E.2d 841, 24 Va.App. 377 (Va. App., 1997). So putting your negative opinions about your boss on full social media blast could well show that “disregard” for the employer’s interests…

At the same time, a diligent lawyer’s official answer to any legal conundrum is always, “It depends!” It depends what the alleged comments actually were and where they were broadcast – every case is fact specific. In fact, there are times when an employee’s negative social media complaints could actually be considered protected activity!

Specifically, National Labor Relations Act (NLRA) Section 7 provides employees certain rights to unionize and join together to advance their interests as employees. This right is being interpreted more and more broadly these days, to include making certain public statements and grievances about employment conditions (even on social media). Under the NRLA, employees cannot be discharged for engaging in this protected activity. So, now more than ever, “it depends” what you say on social media, whether or not your boss is a Facebook friend, and who’s following those trash-Tweets! Note to employers: before you terminate an employee for social media comments, consult an attorney about exactly what was said. If the employee’s words were, “my job sucks and they don’t pay me enough,” this could be protected activity (as silly as that sounds), even if said, posted, blogged or blasted in a very flip and disrespectful manner.

Hold on there, ye oppressed workers…the NLRA is still not a free license to go off on your boss! There is no constitutional “right of free speech” to trash the company in any manner whatsoever (there has to be state action for a free speech claim, and a company is private entity. Note to employees: you’d better watch your “free speech” when it comes to whoever signs those paychecks!)

Again, it really depends. So, workers, before you wage web-war on your employer… And employers, before you dismiss for the diss… Carefully consider where your next job may be, or whether or not the words are legitimate grounds for termination. And consult with a lawyer before clicking “post” or before sending that termination notice!

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