Can I Be Fired for Facebook? Looking at the Legality of Social Media Terminations Across Job

Types

Kimberly W. O’Connor, J.D. and Gordon B. Schmidt, PhD.Indiana University-Purdue University Fort Wayne

oconnok@ipfw.edu ; schmidtg@ipfw.edu**This presentation is available on SlideShare.

Legal Protections For Workers• Many legal cases have resulted from employees’ personal social media

use.• 17% of employers report disciplinary issues and 8% report firing

employees. • Questions:

1) What legal protections exist for employees who use social media? 2) Are there common guidelines for what organizations deem to be appropriate and inappropriate online behavior? 3) Are there differences in what is considered acceptable social media behavior across job types?

Employee Classifications Defined

At – Will/Private Sector Employees - An employee whose employment is for an indefinite duration and can be hired or fired at the employer’s discretion.

Union Employees - An organization intended to represent the collective interestsof workers in negotiations with employers over wages, hours and working conditions.

Public Sector Employees – A person who is employed in the public sector and whose work is controlled by governmental bodies whether at the federal, state, or local level.

NLRA Applies To At-Will and Union Employees’ Use of Social Media

• National Labor Relations Act – “NLRA” Section 7 of the NLRA gives employeethe right to engage in “concerted activities” for their “mutual aid and protection.”

• “Protected Concerted Activity” includes two or more employees acting together to address a collective employee concern about work terms or conditions.

• Employers cannot take action to restrain such activity.

• Online social media is included

Design Technology Group, LLC, 359 NLRB No. 96 (April 19, 2013).

Clothing Store Employees who complained on Facebook about their supervisor, including the supervisor’s treatment of employees and the supervisor’s lack of concern for employee safety.

The employees got their jobs back after the NLRB determined that their Facebook discussion involved “terms and conditions of their employment,” as protected by the NLRA.

Triple Play Sports Bar and Grille v. Nat’l Labor Rel. Board (2014).

• “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!”

• “I owe too. [The boss is] Such an asshole.”

• The employees got their jobs back, were awarded back pay and money for their tax liabilities.

Union Case – City of Detroit v. Detroit Police Officers Association

• Officer Bennett created and operated an Internet website, www.firejerryo.com, that was critical of police chief Jerry Oliver.

• The website provided a forum for police officers to express concerns regarding the police department and included “edgy” criticism of departmental officials. Many officers posted on this website.

• Bennett was fired. The court held that Officer Bennett’s rights were interfered with and that the discipline violated the law.

• Bennett was reinstated to his original job.

The NLRA does not protect against “personal gripes.”

Free Speech Rights Apply to Public Sector Employees

The First Amendment states that Congress shall make no law….abridging the freedom of speech.

For Public Employees First Amendment rights exist for matters of “Public Concern”only and only if the speech is spoken as a citizen and not as a public employee.

Public Sector Employees – Non-Union Police Officers

• "Dear Mayor, can we please get a leader that understands that a department sends officers (to) the funeral of an officer killed in the line of duty?"

• 5th Circuit (2015) – Held this post was not a matter of public concern since she was speaking as an officer, not as a citizen. Graziosi v. City of Greenville, (5TH

Cir., 2015).

Public Sector Employees – Non-Union K-12 Teachers

Rubino v. City of New York, (Sup. Ct. NY 2012)

Tenured fifth-grade New York school teacher, Christine Rubino posted the following statement about her students, “I HATE THEIR GUTS! They are the devil’s spawn!”

She was terminated for misconduct, neglect of duty, and conduct unbecoming of a teacher

Rubino argued that her post was protected by First Amendment Freedom of Speech and New York Education Law 3020. The court held that Rubino’s statements did not involve a “public concern” and could not be afforded First Amendment protection. But, Rubino got her job back because of the state statute, which required an examination of her entire teaching record. The court held that her post was an isolated incident of intemperance.

Nuances for certain job types: State Statutes and Collective Bargaining Agreements

• Common in certain professions are additional state law protections. Ex. Teacher Tenure Laws.

• Collective Bargaining Agreements – It is common for a just cause provision that permits challenges to disciplinary action through a grievance procedure such as arbitration.

• Some industries may promote employees’ social media use as good for business. Ex. IBM encourages staff to express themselves, let their voice shine and demonstrate their creativity and skills on social media.

Common Guidelines and Criteria Across Job Types

• Employer social media policies may not be overbroad so as to restrict employees’ First Amendment or NLRA rights.

• Some states protect against employer requests for social media passwords, no matter what the job type.

• Legal protection and/or consequences for the employee, begin at the moment the employee receives the job offer.

What do we still need to know?

• If the adoption of additional privacy protections by social media websites will effect employers’ ability to observe employees’ social media use.

• If public opposition to employer discipline involving social media will result in more state law protection for employees over time.

• If international laws involving social media and employment will have an impact on US laws (Ex – Right to be Forgotten).