HR Management & Compliance

Calling Boss ‘Pervy Wanker’ on Facebook—Terminable Offense?

Careless employees end up getting terminated over their social media indiscretions; but HR managers can also wind up unemployed if they don’t handle social media issues carefully. Attorney Thomas Deer shares the risks on both sides of the coin.

TAs a general matter, he says, employers face two sorts of risks relating to employee usage of social media: (1) business and legal risks stemming directly from employee use of social media; and (2) legal risks stemming from firing employees or taking other adverse action due to use of social media.

Deer, a featured speaker at BLR’s National Employment Law Update held recently in Las Vegas, is a shareholder in the Chicago office of law firm Ogletree, Deakins, Nash, Smoak & Stewart PC.

First, Deer says, employers face significant direct risks relating to their employees’ off-duty and off-site use of social media, including:

  • Offending customers and clients
  • Negative publicity and damage to the company’s reputation or business
  • Defamation
  • Intellectual property infringement (including trademark and copyright)
  • Trade secret disclosure
  • Disclosure of private customer and client information
  • Claims by coworkers against the company, such as for harassment, negligent retention or supervision, or infliction of emotional distress
  • Tortious interference with current or prospective business relationships or contracts
  • Fraud
  • Non-competition and unfair competition issues
  • Privacy-related torts
  • False endorsement, association, and FTC Endorsement Guide issues
  • Securities law claims (federal and state, including 10b-5 claims and selective disclosure)
  • Discovery in civil and/or criminal matters (evidentiary preservation orders, user information, etc.)
  • Threats (including to the subject of the posting)
  • First amendment free speech (not applicable to private employers)

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Second, once employers become aware of conduct by employees relating to social media, employers must cons

ider legal risks stemming from firing employees for use of social media, including the following potential claims by employees:

  • Off-duty conduct laws
  • Retaliation under Title VII and state laws
  • Whistleblowing under SOX
  • Discrimination under Title VII and state laws
  • Concerted action under the NLRA
  • Invasion of privacy
  • Stored Communications Act, Wiretap Act, and Electronic Monitoring Statutes

In light of the serious business and legal concerns outlined above, many employers actively police employee blogs and social networking sites, while other employers simply wait for coworkers to report social media postings. 

Regardless of how the employer learns of the postings, more and more employers are terminating employees due to postings on blogs (a/k/a, “getting dooced”) and social networking sites.  Here are some examples:

  • A former Wal-Mart cashier says he was fired for joking on his MySpace page that the company’s average IQ would increase if a bomb were dropped on the company’s stores.
  • A probationary officer with the Trotwood (Ohio) Police Department (who was already under investigation for using a Taser on a pregnant woman in the police lobby) was fired for posting photos of evidence from police investigations on MySpace.  Specifically, the officer posted a picture involving marijuana and money seized in a drug bust, and a picture of a cruiser’s speedometer indicating a speed of 100 mph.

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  • In April 2009, two Domino’s Pizza employees were fired and now face felony charges for food tampering after they posted YouTube videos, which included the employees passing gas on salami, sneezing on ingredients, stuffing cheese up their nostrils, and then using those items on food.
  • A Goldman Sachs trader in London claims he was caught spending four hours per day at work on Facebook.  He claims he was fired after he posted the company’s warning letter on his Facebook profile, commenting that “losing my job worries me far less than losing Facebook ever could.”
  • An intern at Anglo Irish Bank emailed his boss and insinuated that a family emergency: “Something came up at home and I had to go to New York this morning.”  The next day, the intern’s Facebook posting chronicling his New York trip was forwarded to management by co-workers.  The posting included a photo of the intern in a neon fairy costume, with a beer in one hand and a “magic wand” in the other.  The intern’s boss sent a reply email saying, “Thanks for letting us know — hope everything is OK in New York.  Cool wand.”  It is unclear whether the intern was fired.
  • An employee was fired for posting on Facebook that she hated her job and that her boss was a “total pervvy wanker” that always made her do “sh_t stuff” just to upset her.  Unfortunately, the employee forgot that her boss had access to her posting since she previously “friended” her boss.  The boss subsequently terminated the employee via Facebook.

Finally, remember to review NLRB issues before terminating employees for what they do on social media.

In tomorrow’s Advisor, tips on dealing with employees who moonlight while on FMLA leave, plus news about the one-stop solutions center for HR managers.

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