Social networking has exploded in recent years. Virtually everyone (even your employer) engages in some sort of social networking activity. Employers use social networking websites to learn more about their job applicants, employees, and the individuals who sue them. As social networking has increased so has the number of employees terminated for their social networking activities.
Two employees sued their former employer in New Jersey federal court earlier this year after they were fired for their MySpace activities. Brian Pietrylo and Doreen Marino created a MySpace forum to vent, complain, and make fun of their employer and supervisors. Management learned about the forum and terminated Pietrylo’s and Marino’s employment for violating the company’s professionalism policy. The Pietrylo case raised the question of whether an employer can terminate an employee for private statements made on a social networking website. Unfortunately, the Pietrylo case did
not answer that question, leaving employees to wonder what social networking activities can result in termination. While there is not much clarity in this area, you should be aware of the following if you engage in social networking activities:
You should not say or do anything in your social networking activities that you do not want public.
You must realize that nothing on the internet is private. That is true even if your profile is set to private. For instance, I worked on a case where the plaintiff told his Facebook friends to lie to the EEOC and say that he was terminated because of his race. The plaintiff’s page was set to private leading him to believe that his communications were private. They were not. The EEOC dismissed the case when it saw the plaintiff’s Facebook page. You should not say or do anything that you do not want to be publicly available, because your information or communications can be accessed by current or potential employers, coworkers, recruitment agencies, government and law enforcement agencies, among others.
You should assume that your employer is monitoring your social networking activities.
It would be extremely difficult (if not, impossible) for an employer to monitor the social networking activities of all its employees. However, operating under the assumption that your employer is monitoring your activities will help you to avoid behavior that could get you fired. That tip may have saved a National Suisse employee’s job. Earlier this year, a National Suisse employee told her manager that she had a migraine headache that prevented her from using her computer.
National Suisse allowed the woman to take a sick day to recuperate. Once home, the woman logged on to Facebook. National Suisse terminated the employee claiming that her behavior destroyed its trust because her Facebook activity unequivocally showed that she could use a computer. You should not make any comments, post any pictures, or engage in behavior that you do not want known by your manager.
You should monitor what people put on your social networking page and say about you on the internet.
The internet’s lawlessness has caused some to equate it with the wild west. The internet is lawless. You may conduct yourself flawlessly on the internet and still be harmed by a comment someone else makes on your page or a picture of you someone else posts. A forklift driver was terminated when his managers saw a video on YouTube of his at-work forklift stunts which included performing burnouts, wheelies, and crashing into stacks of pipes. The video was not posted
by the forklift driver. It was posted by a coworker who filmed the stunts and thought they were “cool.” You should conduct regular internet searches to
see what information is available about you. You should have negative or derogatory information removed.
You should not disclose confidential company information.
Employers terminate employees who disclose confidential company information on social networking websites. Last month, Barneys’ café terminated an employee for tweeting that an actress skipped out on her check. The employee did not mention the restaurant’s name. The employee was never told that he could not tweet about customers, was not asked to stop tweeting about customers, and was not previously warned that tweeting about customers was unacceptable and could result in termination.
None of that stopped Barneys from terminating the employee on his first offense. You should not disclose your company’s confidential, private, proprietary, or privileged information on your social networking website or otherwise.
You should know your company’s policy on social networking.
On September 23, 2009, the Society of Corporate Compliance and Ethics reported that “social media has caught many employers by surprise” and company policies have not yet caught up with the explosion of social media use by their employees. There are some companies that have social networking policies. If your company has such a policy, you should know what your company says about acceptable and unacceptable social networking behavior. The lack of a social networking policy does not prevent you from being disciplined or terminated. Many companies that do not have formal social networking policies are using more general company policies to discipline employees for social networking activities. Companies often rely on their Confidentiality policy, Inappropriate Conduct policy, and/or Anti-discrimination policy in addressing employee’s social networking activities. In fact, two Burger King executives were terminated for their blog comments. Burger King did not claim the executives violated a social networking policy; rather, Burger King claimed that the employees violated company guidelines that prohibit employees from speaking for the company outside of official corporate releases, guidelines against disclosing information about private negotiations, among other guidelines. You should be aware of any company policy that deals with conduct or the disclosure of information before engaging in social networking activities.
You should research whether your State has an off-duty conduct law.
Employees can be terminated for virtually any reason provided the reason is not discriminatory. That general rule is changing in some States. Some States have enacted laws which prohibit employers from disciplining or terminating employees for non-criminal, off-duty conduct. For instance, New York has a legal activities law that prohibits discrimination against job applicants and employees who engage in lawful activities during nonworking hours. For another instance, Colorado has a law that prohibits employers from terminating employees for lawful off-duty conduct. The off-duty conduct laws have not been tested by an employee who was terminated for social networking activities. However, those laws would seem to apply to social networking activities which for the most part are not criminal. An off-duty conduct law should severely restrict an employer’s ability to terminate employees for social networking activities. You should determine if your state has enacted laws which prohibit discipline or termination for non-criminal, off-duty conduct.
Employees’ social networking activities are increasingly becoming the basis for discipline and termination. A recent survey found that 17% of large employers have disciplined employees for social networking activities and 8% of large employers have terminated employees for social networking activities. Those numbers will probably escalate in the future, especially given the growing popularity of social networking. So, you should continue to network on Facebook, MySpace, LinkedIn, and Twitter, but be careful because your social networking activities can result in discipline, up to and including your termination.
Shalanda Ballard is an employment defense attorney who has defended employers in all facets of employment litigation. Ms. Ballard was named in the National Register’s Who’s Who and in Law & Politics Magazine as a Rising Star. She has spoken at continuing legal education conferences and employment law seminars. Ms. Ballard also writes an Employee Rights Blog.
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