To Friend or Not to Friend: Employers Struggle with Social Media Use by Employees

For local businesses in particular, word of mouth can be a make or break proposition. 

And while people still congregate at Luke's Donuts and other local events to chat (and, yes, even gossip) about the goings on in town, social networks -- like Facebook -- have become the new neighborhood spot.

It's not just teens and college kids anymore.  Indeed, with over 700 million users (twice the size of the United States!), Facebook has become the place where people talk and share information.

So, with so many people using those sites, employers are figuring out that what their employees say on Facebook or Twitter may matter.  Inevitably, they come to this question: Can I fire an employee for what they say on Facebook?

The answer is a definite..... "Maybe."  There are very few laws that explicitly reference these types of sites and federal and state agencies have been struggling to interpret things.

The Hartford-area office of the National Labor Relations Board filed a complaint late last year against an employer who fired an employee for disparaging remarks she made about the company on Facebook. 

The NLRB said that the employee could complain about the terms and conditions of her employment -- even on Facebook.  That particular case quickly settled.

Indeed, the headlines this morning are about yet another Facebook firing case that the NLRB is prosecuting. 

Despite this case, there are certainly limits that even the NLRB would agree with. An employee who discloses trade secrets or confidential information could be subjected to discipline.  Insubordination may be another type of instance where a firing is justifed.

Employers though should be cautious in this still-developing area.  For example, when should you "friend" a subordinate? Is it ok to "monitor" an employee's private Facebook wall posts?

A well-drafted social media policy for an employer is critical.  I like this version that was posted on another employment law blog as a start. But regardless, before taking action, employers should consider talking with their counsel.