Online Insubordination and the Facebook Firing Case

Can you fire someone for walking around the office and telling every other employee that you’re an ignorant jackass with delusions of grandeur?  Unless it can be proven that the termination was the result of a wrongful act on your part (i.e., discrimination, etc.) or you have a contractual obligation to keep him on board, then the answer is probably yes.  He may file a complaint a union or the labor board, but if you need to justify his termination, that level of insubordination should do the trick.

What if he tells the same employees the same thing, but does it at a bar after work?  Can you justify terminating him then?  Probably not, as federal law states that employees are entitled to engage in “protected concerted activities,” which include discussing working conditions between two or more employees.   After all, he’s voicing his opinion on his own time, and who doesn’t gripe about the boss every now and then?

Now, what if he posts the same comments on his Facebook page, and anyone (including your employees) can access the page from the office during the workday? Is it ok to fire him then?  Thanks to a case in Connecticut, it may be that federal law also protects employees who air their beefs on social networking pages.  In the so-called “Facebook Firing” case, American Medical Response of Connecticut fired an employee after she posted insulting personal remarks about her supervisor on her Facebook page, and now faces an unfair labor practice charge brought by the National Labor Relations Board (“NLRB”).  Although the company is unionized, the outcome will no doubt have an affect on non-union workforces as well.

The question at issue is what constitutes “protected concerted activity” in cyber-space? It may include an employee complaining on his or her blog about workplace conditions if other employees read or comment on the blog posting.   Depending on the outcome of this matter, protected activity also may include an employee criticizing a superior or other co-workers online.  In its complaint, the NLRB is claiming that the company’s Internet policies are unlawful because they prohibit employees from making disparaging remarks about the Company, or from otherwise discussing company policy online without permission.  If this argument is accepted, federal law may protect these activities when they occur on employees’ personal websites or social networking pages.

We’ll have more definitive guidance after the hearing on the American Medical Response matter, which is set for January, 2011.  In the meantime, employers should think twice before terminating an employee for his or her online communications, and review current policies to ensure that they do not interfere with lawful employee conduct.

Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
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