When Can You Fire an Employee for Social Media Misbehavior? (or When Can You Be Fired ...?)

Kashmir Hill has an entertaining and informative article on Forbes entitled "When You Can and Can't Fire Employees for Socia Media Misbehavior."

After summarizing some pretty interesting actual examples of socia media misbehavior (or is it?), she links to an August 18, 2011 National Labor Relations Board report written by its acting general counsel about the seeming rules of the road for employers and employees regarding social media use.

Kashmir's article states:

After a deluge of employee complaints about firings and discipline resulting from their social media use, the National Labor Relations Board has issued a report about the many cases in order to shed some light on when employers screwed up and when they didn’t. As you know, the Constitution doesn’t apply to private employers, so employees can’t claim the right to freedom of speech. But all private employers must respect their workers’ right to “protected concerted activity” — in other words, the right to talk among themselves about their horrible working conditions. This right is not limited to union workers; it applies for all private employees....

Last year, the NLRB got lots of media attention for bringing a complaint against an ambulance company for firing a driver who had complained about her bosses on Facebook. That seemed to be a wake-up call for employees who hadn’t realized that they didn’t have to be part of a union to be able to contest firings for badmouthing their bosses, says a NLRB spokesman.  The NLRB’s general counsel put together a “Report Concerning Social Media Cases” [pdf] (via Above the Law) because the agency has been getting so many inquiries from employers and employment lawyers about what exactly the rules are when it comes to social media. 

The report itself begins with:

During my term as Acting General Counsel, I have endeavored to keep the labor-management community fully aware of theactivities of my office. It is my hope that this openness will encourage compliance with the Act and cooperation with Agency personnel. As part of this goal, I continue the practice of issuing periodic reports of cases raising significant legal or policy issues.This report presents recent case developments arising in the context of today’s social media. ...

I hope that this report will be of assistance topractitioners and human resource professionals.

Read the article first and then download the NLRB's report and read that to say up-to-date on your rights as an employer or employee when it comes to social media.