Employers Walk the Line on Employees’ Social Media Comments

As employers, if you feel that an employee’s comment on social media, such as Facebook or Twitter is damaging to your business’s reputation, it is wise to seek legal counsel before firing the employee. Employers can end up in a wrongful termination lawsuit if they do not carefully walk the line where social media is involved. They also may be subject to publicity backlash.

New York Employment-at-Will

Like most states, New York is an “employment-at-will” state. Under the NY Labor Code this means an employer can at any time and for any reason terminate the employment of a worker unless a law (for example discrimination laws) or agreement (union labor contract) provides otherwise.

Employer Social Media Policies

A Forbes Magazine article points out that employers can issue policies that prohibit employees from revealing trade secrets, criticizing customers or creating a hostile work environment through social media posts about the company. Doing so is within their legal rights and protects the company.

However, if an employee has a grievance against the company that is discussed with other company employees online, National Labor Relations Board  (NLRB) advisories and rulings protect employees under these circumstances — even when they’re not union members. Such communication is protected when it aims to improve working conditions.

To Terminate or Not to Terminate an Employee?

Another important factor to consider is whether terminating an employee will result in public backlash that is more damaging than keeping the worker employed.

Uber terminated a driver who had tweeted a link to an article that claimed driving for Uber was not much safer than driving a taxi. The pubic backlashed negatively on social media against Uber when the employee was terminated. Uber ended up reinstating the driver.

Receiving sound legal advice is often the best way to become informed so you can make the right decision.

Stephen Hans & Associates is an employment litigation firm that has assisted small and medium sized businesses with employment law for more than 20 years.

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