Violating Employers Social Networking Policy
UPDATED: June 19, 2018
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Violating an employer’s social networking policy, like a violation of any other employer policy, is generally legal grounds for firing or other form of discipline, inclulding potential lawsuits. Most business social networking policies prohibit social networking on company time or posting anything online that reflects negatively on the company. Some company workplace policies prohibit posting of private company details on online social network sites. However, if an employer’s social media policy covers too much ground, disciplining an employee for social networking activity may cause trouble for the employer.
Terminating an Employee for Social Networking
Most states are at will employment states, meaning that an employer can terminate an employee for anything that does not violate employee discrimination laws or other public policy. As such, firing an employee engaging in social networking during office hours is usually no problem at all, especially if such activity violates the business’s social media policy. After all, the employee is at work to work and logging in too many work hours on Twitter, YouTube, Linked In, Facebook, and a myriad of other websites is wasting time, cutting into an employee’s productivity.
Moreover, what you post online matters. Posting negative or damaging comments, using the company’s photos or graphics, disclosing classified company information are red flags and legitimate (and obvious) reasons for an employer to fire an employee. Posting personal and privileged information like a doctor-patient relationship, medical records, private customer or colleague’s information or other damaging disclosures can legally put an employer at risk.
Even seemingly harmless online social networking can be grounds for termination if it violates the company’s isocial media rules. For example, let’s say a company prohibits its employees from giving other employees detailed references to other employers. Now suppose the head of the financial department gives a coworker who was job hunting in another state a glowing reference on the social networking website LinkedIn. This action is in violation of the company’s policy and grounds for discipline.
To avoid termination or other discipline at work, employees should refrain from any social networking at the work place unless it is part of the job in line with a social networking business policy. As such, personal use of the computer should be minimized. So tweeting or telling Facebook friends about a company’s trade secrets, its financial data or other proprietary intellectual property are activities that probably will cost the employee a job. Moreover, while an employee should go through appropriate channels if the employer is engaging in illegal activity, an employee should refrain from ranting and raving about his boss or the company on his or her Facebook account, blog, or other online social networking sites.
Potential Limits to Terminate for Social Networking
While the employer has the right to take some form of discipline against an employee for engaging in prohibited or irresponsible uses of social media at work, the employer shouldn’t pick and choose who he or she punishes – that is, if an employer has a social networking policy that prohibits employees from using social networks at work, the employer has to effectively enforce the policy and punish any use, not only the conduct that disparages the company.
Moreover, some states have off duty conduct laws, which essentially mean that an employer may not discipline their employees for certain conduct outside of the workplace. While in the past these off duty conduct laws have applied to activities such as smoking or legal recreational activities, some of these laws are written broadly enough to encompass online activity, and some speculate that they could apply in appropriate situations.
Finally, a social networking policy that prohibits too much may be a violation of an employee’s Section 7 rights under the National Labor Relations Act (NLRA). Section 7 of the NLRA protects the rights of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This section gives employees the right to speak out in an effort to improve workplace conditions. In August of 2011, the National Labor Relations Board (NLRB) released a report that suggested that employers’ social networking policies that prohibited all online conduct that might be considered harassing or offensive to the employer would likely violate an employee’s section 7 rights, as the employee would be afraid to speak out against the company for any reason. In other words, a social networking policy that does not clearly spell out (1) what is acceptable and unacceptable social networking behavior and (2) the potential consequences for irresponsible uses might be overly broad and an employer could get in trouble.