Facebook Firings – Who’s To Blame?

A few team members from Liqui-Site will be speaking at an upcoming event for soon-to-be graduates at St. Thomas Aquinas College called “Social Media: The Untapped Job Market”. Our previous experience speaking to this age group taught us that aside from discussing new job opportunities in the field of Social Media, one question is guaranteed to be asked: Can I get fired for the content I post on my own Facebook Timeline?

The truth of the matter is that existing legislation on this issue is constantly under appeal, so it’s hard to say definitively yes or no. But student concerns are legitimate. The National Labor Relations Board (NLRB) reports an increase in the number of cases involving social media. The agency first took on social media – more specifically ‘Facebook Firings’ – three years ago with a case that went viral and opened up public conversation about privacy and employment in the digital age. (The initial case involved an ambulance service professional fired over complaints she made on her Facebook profile about company management.) Following settlement of that early case, the NLRB issued a report that made one thing clear: social media presents new, significant legal and policy challenges to labor disputes.

Also of note in that report was a definition of social media:

Social media includes various online technology tools that enable people to communicate easily via the Internet to share information and resources. These tools can encompass text, audio, video, images, podcasts, and other multimedia communications.

By that definition, social media is basically any and all online activity! Not surprisingly more than one hundred cases of “Facebook firing” have been brought to the Board, and they tend to have two general themes: Either an employee was wrongfully terminated, or a company’s social media policy went beyond protecting business.

The latter issue is messy. Most marketing firms will tell you that it’s necessary to have a social media policy if your business is of a certain size, industry and culture. A social media policy may even be the cornerstone of an organization’s broader social media marketing strategy. While many businesses do not have a social media policy in place, those that do probably drafted them several years ago – and rapid changes in social media make them problematic (and in some cases, obsolete).

The NLRB is making an effort to protect workers’ rights in cases where the outcome is “constructive”, as opposed to protecting individual gripes – like the exchange of nasty comments between company employees on Facebook. But whether or not an employee’s work-related posts are “protected” by the NLRB is very much a case-by-case basis.

Based on the NLRB’s investigation into 14 cases of workers who had been fired over Facebook activity – in 4 cases they found the firing to be unlawful because the employee was engaged in “protected concerted activity.” This means they were acting with fellow employees to initiate group action against a perceived injustice by their employer. And in 5 cases the board concluded that the employee had been in the wrong and upheld the employer’s decision. What happened with the remaining cases is unknown, but it certainly makes a point that the law on what’s “protected” is upheld… until it’s not.