Fired over Facebook: Employer Regulation of Speech on Social Media Sites

Experts have stated that “the intersection of social media and the office is a potential minefield,” creating numerous possibilities for a wide variety of lawsuits. A manager “poking” an employee on Facebook might give rise to a sexual harassment claim. Or perhaps an employer may rescind a job offer to an employee after learning via Facebook that the applicant is of a particular religion or sexual orientation. While these types of lawsuits seem inevitable, claims concerning employee speech on social networking sites have already become prevalent.  

The explosion of social media and networking sites such as Facebook, Twitter, and blogging sites, are creating new legal questions in the realm of employment law and freedom of expression. Dozens of cases have surfaced in which employees have been fired or reprimanded due to information they have posted to their personal Facebook or Twitter accounts.  In one US case, a woman in Connecticut was fired after criticizing her boss on Facebook. In another US case, a former high school teacher was forced to resign after she posted a picture of herself holding a glass of wine on a European vacation. In the UK, a laid-off banker was denied her severance package after posting comments on the said package.

It is irrefutable that information posted to a social media profile can be considered expressive in nature. Whether it be posting a status update about a political story, becoming a fan of a musician or social movement, or uploading pictures of your weekend festivities, sites such as Facebook have become avenues for people to express who they are. While employees might consider their personal profile pages to be separate from their professional lives, because this “personal “ information is  publically available over the internet, the line between personal and professional is beginning to blur.

Employers have argued that adhering to company values and preserving the integrity and character of the business is a twenty-four hour duty; Facebook postings that contradict core values of the company are appropriately unacceptable. Additionally, companies argue that they are entitled to demand loyalty from their employees; workers that badmouth their employer or colleagues on the public venue of the internet cannot possibly have the best interests of the company in mind. From this point of view, employer restrictions on Facebook and Twitter activity is less about free speech and more about standard and reasonable employee expectations.  As one commentator states, “I hear the screeching about free speech right now.  Well, yes, you have the right to free speech, but I also believe that companies should have the right to terminate people who use that speech to denigrate the company. “

This is not the position that the National Labor Review Board (NLRB) in the U.S. has taken.  In response to the woman in Connecticut who was fired for criticizing her boss on Facebook, the NLRB filed a complaint against the woman’s former employer, an ambulance company. The NLRB disapproved of the company’s actions because it hindered employees’ ability to discuss working conditions; such discussions are protected under U.S. labor laws. The NLRB contended that the thread on Facebook was a valid joint discussion of working conditions even though Facebook is not necessarily a venue traditionally used to discuss such matters. On February 7, 2011, the NLRB successfully settled the suit against the ambulance company, which agreed to revise its internet and blogging policies.

This settlement might mark an attempt to bring the law up to speed with technological realities. Protecting communication between individuals is at the core of freedom of expression principles, and the law ought to consider the changing manners in which individuals communicate. Thirty years ago, people stood in the streets distributing leaflets, perhaps without worry of running into a supervisor or colleague. Today, however, Twitter and Facebook are one of the most popular methods of communication, in part due to the unique ability to reach a large, even global audience at the click of a mouse. Despite the greater opportunity for exposure that this type of communication provides, the basis of activity on these sites should be considered protected expressive conduct. No more should an employer be permitted to fire an employee for attending a civil rights protest in the 1960s, than sending out a Tweet of controversial content in 2011.

Finding the balance between protecting employee speech and employer interests will be a future challenge for courts in these types of lawsuits. Where exactly the line will be drawn is already perplexing legal commentators: “The line can go over to disloyalty or disclosure of truly confidential information,” Employment lawyer Chuck Cohen said. “[Discussing employers online] is not without boundaries, but we just don’t have a good sense yet of where the boundaries are.” The result of the NLRB settlement, however, is a favourable starting point, as it recognizes that freedom of expression is compromised by allowing employers to freely regulate communication on social networking sites at their whim.

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