Brendan Leipsic Capital Punishment

[pilldoc]

https://hrdailyadvisor.blr.com/2018/09/12/can-you-fire-an-employee-over-social-media-posts/

 

Can You Fire an Employee over Social Media Posts?

By Bridget Miller, Contributing Editor Sep 12, 2018 HR Management & Compliance

Can an employer fire employees solely over what they’ve posted on social media? Does the answer change, depending on whether the post was made from a work or personal device? Does it matter whether the person’s social media account is connected to the employer in some way?

 

Turns out, the answers aren’t always black and white. While employers can and do fire employees over social media issues, there are also instances where it would potentially be illegal to do so.

 

When Is It Legal to Fire an Employee over Social Media Posts?

 

Here are some examples when it is usually legal to fire employees over their social media posts*:

• When their behavior clearly crosses a stated employer policy or other obvious line, such as being threatening or harassing toward other employees.
• When the behavior is clearly violating the social media policy, or when the employee is on social media for personal use while on the clock. (This likely wouldn’t be something that would result in termination for a first offense, but it could escalate.)
• Behaving in a way that tarnishes the employer’s reputation, either by association or simply from the employee’s conduct. (Note: There are exceptions to this, which we discuss below.)
• Divulging confidential information.
• Posting things that prove the employee has lied to the organization, such as taking medical or disability-related leave but then showing on social media that the reason for the leave was not valid. (Employers should proceed with caution on this one and investigate before making assumptions too quickly.)

When Is It Illegal to Fire an Employee over Social Media Posts?

Here are some examples of when an employee’s social media posts should not result in firing, even if it may seem warranted otherwise:

• When the post is protected in some way. The most prominent example that some employers overlook or get wrong: Employees should not be fired when their social media post could be considered “concerted activity” and could, therefore, be protected activity under the National Labor Relations Act (NLRA). Concerted activity includes discussing working environment among coworkers—even in a negative way in public. Employers can get into trouble when they’re too restrictive in their social media policies—overbroad restrictions or repercussions can go against an employee’s NLRA rights.
• When there are specific rules that must be followed before a termination (and those are not followed). For example, there may be contractual stipulations with the employee’s union that outline steps that must be taken before any termination. If those steps aren’t followed, the termination may be illegal—even if it would have been fine otherwise.
• When the social media post represents some other protected activity, like whistle-blowing, or protected reporting of something else, such as discrimination or harassment.
• When the employer/employee are in a state that has other protections. Some states do not allow employers to fire employees for conduct outside of work, as long as the activities themselves are legal. This means that it would be much more difficult for an employer in one of these places to fire someone for conduct it finds distasteful that is still nonetheless legal. Some places also have protections in place for political speech.

Note: Some may wonder why this is not an issue of freedom of speech. Freedom of speech, as defined in our First Amendment rights, protects individuals from governmental restrictions on speech—but it does not, in fact, mean that things we say can never have any consequences at all and does not usually apply to private employers. Employers have the right to impose consequences, and doing so does not infringe on the employee’s First Amendment rights.

[ruxpin]

Yeah, if the speech or behavior is protected in any specific way (NLRB, Title VII, ADA, etc.) then it is illegal to use that reason to terminate. 

 

Being an a-hole is not a condition covered by the ADA (Americans with Disabilities Act), National Labor Relations Board nor the 1964 Civil Rights Act.   While in some instances it gets you elected, being an a-hole on social media can be a reason for termination.

 

It's important, from an employer perspective, to be consistent (no Sidney Crosby exceptions) and to have a clearly-stated policy.   The NHL's behavior unbecoming policy actually qualifies despite being unspecific.

 

We can have an existential discussion on whether this is the way it should  be, but the fact remains this is the way it is.

 

I'm not fluent enough on Canadian employment law (I've only worked on getting someone a Canadian work visa), so I don't know how different--other than the above referenced specifics obviously wouldn't be relevant.

 

EDIT:  It's apparently similar in many ways:

https://www.hcamag.com/ca/news/general/can-you-fire-an-employee-for-a-social-media-rant/129687

Edited May 14, 2020 by ruxpin

[WordsOfWisdom]

12 hours ago, flyercanuck said:

 

Ok, now you're arguing FOR us.

 

Wait, what?   How did this happen?  

[WordsOfWisdom]

11 hours ago, Podein25 said:

 

It's a dizzying intellect WoW possesses

 

  

 

[WordsOfWisdom]

9 hours ago, pilldoc said:

Can Should You Get Fired for What You Post on Social Media?

 

That's the heart of the issue. Not what happens today. What should happen.

 

 

[WordsOfWisdom]

9 hours ago, pilldoc said:

When their behavior clearly crosses a stated employer policy or other obvious line, such as being threatening or harassing toward other employees.

 

In general I agree... and this case is different from others we've seen recently like Roenick's case, but then every pro athlete and every coach in the history of the world just got fired lol.

 

The only difference between today and yesterday is that:

• We have a digital record of every "infraction".
• Employers have "God-like" vision to be able to see every interaction that every employee now has with anyone.
• People are softer than Downy.

So my advice going forward (other than just being nice of course - which occasionally works  ) is to call your social media accounts "anonymous" so that you can't be identified by your employer when you post on social media, and make sure any interactions with co-workers happen face to face so that arguments and bad comments are only heard by the parties who were present and not your employer. That way there's no record of anything and nothing gets traced back to you. 

 

That's basically how people are going to have to deal with this issue moving forward. For every action, there's a counteraction to get around it. Free speech just moves underground.   

 

[WordsOfWisdom]

6 hours ago, ruxpin said:

Being an a-hole is not a condition covered by the ADA (Americans with Disabilities Act), National Labor Relations Board nor the 1964 Civil Rights Act.   While in some instances it gets you elected, being an a-hole on social media can be a reason for termination.

 

lol.   

 

(I got a good chuckle from that. Nice!)