Social media employment law evolving

Karen Denney

In the past year, the trend of employees using social media in ever-exceedingly creative ways has continued. One of the more recent examples of this creativity is an employee who resigned by submitting an interpretive dance video to Kanye West’s “Gone” to her employer through YouTube. Like employee social media use, employment law concerning social media continues to evolve and change, with courts applying existing law to employee social media use. One area of existing law that several courts applied to employee social media use in 2013 is the general right of public employees to exercise free speech without being retaliated against based on that speech. In September 2013, the Fourth Circuit Court of Appeals considered whether sheriff’s department employees’ “liking” the sheriff’s political opponent’s campaign page was a form of First Amendment protected speech. The court equated “liking” a Facebook campaign page to displaying a political yard sign, which has previously been determined to be protected speech, and held that Facebook “likes” are a form of First Amendment protected speech. Consequently, for public employers, “liking” something on Facebook has just been added to the list of things for which public employers may not be able to discipline or terminate an employee.

Similarly, in October 2013 the 11th Circuit Court of Appeals considered a police department employee’s claim that her public employer retaliated against her by not giving her a promotion after she made a Facebook post criticizing a coworker’s actions in an investigation. This court, once again applying existing free speech law, stated that maintaining good working relationships among employees is a legitimate government interest and held that the employee’s free speech interest did not outweigh the employer’s interest in maintaining good working relationships, denying the employee’s free speech retaliation claim.

Private employers also saw their share of social media employment cases in 2013. While employees of private employers do not enjoy the same free speech rights as public employees, in 2013 private employers lost at least two cases based on their terminations of employees for these employees’ Facebook posts. The employees at issue posted comments about their employers – stating, among other things, that the employee’s manager was immature, the employer was violating labor laws and that an ex-coworker should get an attorney and contact the labor board. In both of these cases, the employees’ coworkers commented on the posts, making similar statements. The National Labor Relations Act (the Act) gives employees the right to take action with one or more coworkers to improve working conditions by, among other things, raising work-related complaints, and it prohibits employers from taking adverse action against employees who engage in such activities. This act applies to nearly all private employers, whether or not any portion of the workforce is unionized. In these cases, the adjudicating bodies held that the employees’ Facebook posts were protected by the Act and that the employers’ terminations of these employees violated the Act, ordering the employers to rehire the employees and pay these employees lost wages.

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Additionally, a private employer faced an Americans With Disabilities Act discrimination lawsuit when it terminated an employee and stated that the reason for the termination was the employee posting on Facebook while driving an ambulance. However, the employer delayed terminating the employee until almost a month after the Facebook post and after the employee took leave for a hip condition, causing the court to question whether the employee’s termination was based on the Facebook post while driving an ambulance or on the employee’s taking of leave related to the employee’s disability. As a result, the court denied the employer’s motion to dismiss the lawsuit, once again demonstrating that, if an employer plans to discipline or terminate an employee based on inappropriate behavior, it is usually advisable for the employer to proceed with the discipline or termination as soon as possible after the inappropriate behavior occurs and consultation with counsel. Whether an employer is a public or private employer, the employer must consider a variety of laws before taking action against employees based on their social media activities. It takes an employee less than a second to “like” or post something on Facebook. Yet an employer’s decision to terminate the employee based on that “like” or post – whether that “like” or post may be constitutionally protected speech or protected by some other existing law – could result in years of litigation.

Karen Denney is a partner at Haynes and Boone LLP in Fort Worth.