Labor & Employment

When can workers be fired for Facebook posts and tweets?


Amy McClenathan apparently was having a bad day when she posted on Facebook, around the one-year anniversary of her mom’s death, that some days she wished she would be fired so she could just stay at home.

The next day she got her wish; the title company for which she worked fired her, KTVK reports.

McClenathan is hardly alone and, especially concerning government and union workers, who may have greater protections against employer infringement on their personal social media use, whether such firings are appropriate is being addressed in administrative hearings and even in court.

The National Labor Relations Board has issued rulings on a number of social media policies in recent months, providing guidance that may be helpful to other employers who are not directly subject to its purview. (However, their authority was cast in doubt, a Bloomberg article today notes, by a federal appeals court decision that three appointments to the five-member board were invalid.)

One potential pitfall for companies is worker criticism of employers on social media posts. Former Arizona Daily Star reporter Brian Pedersen, as the KTVK article notes, lost his job with the newspaper in 2010, after working there over a decade, because he posted some sarcastic Tweets about a Tucson homicide wave. Among them: “You stay homicidal, Tucson. See Star Net for the bloody deets.”

The NLRB said the newspaper was within its rights to do so, as a recent Tucson Weekly article notes. However, the NLRB often views critical postings as equivalent to worker venting around the water cooler, which union workers have a right to do, the New York Times (reg. req.) reported last week.

An October article published by the New York Law Journal discusses and links to general counsel legal memos discussing employer restrictions on social media use.

Related coverage:

ABAJournal.com: “Car Salesman Loses NLRB Case Against Dealership That Fired Him over Facebook Post”

ABAJournal.com: “Union Asks NLRB to Determine If Grocery Chain’s Policy on Social Media Use Violates Workers’ Rights”

Forbes (contributor blog post): “NLRB Slams Costco On Social Media Use Policy: What It Means For Your Business”

Updated at 11:28 a.m. to include Bloomberg article and prior ABAJournal.com coverage re NLRB appointments.

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