Answer to the Employment Law Question for September 2012

As a recent lawsuit shows, an employer can generally discipline an at-will employee for such conduct, and may even bring legal action against him or her. (Employment at will is the default and most common employment relationship, allowing termination for any reason or no reason.) Before reacting, however, an employer should take care to avoid several common pitfalls. Important legal considerations apply that employers should know about before they take action against an employee who has posted grievances online.

 Claims of Illegal Actions. First, if the employee complains of illegal actions by the employer, the employer should proceed cautiously. Federal whistleblower and retaliation laws protect employee complaints of unlawful conduct such as discrimination or harassment, unsafe working conditions, or fraud in servicing government clients. Generally speaking, posting such claims on the internet instead of notifying the employer weakens the employee’s protection and, in certain circumstances, may even justify discipline or discharge. Nevertheless, to protect against liability, employers should consult legal counsel to investigate the claims and to guide their response to the employee’s claims.

• Complaints about Terms of Employment. Second, if the employee complains about terms of employment like pay, hours, or hiring or firing decisions, federal labor law likely protects the employee. The National Labor Relations Act protects employees who communicate with other employees about their terms of employment at the company. Several large companies have had to change their social media policies at the insistence of the National Labor Relations Board so that they do not discourage acts of employee solidarity. Nevertheless, with appropriate legal advice, employers can often effectively counter such online complaints about working conditions within the limitations imposed by federal labor law.

• Anonymous Complaints or Re-Posts. Third, an employer must cautiously approach situations in which it merely suspects an employee of posting anonymous complaints, or in which it learns that the employee has “Like”-d, “Re-Tweet”-ed, or forwarded links to complaints by others. A local federal court decision recently held that employees of a public official are not protected from discipline for “Like”-ing his opponent on Facebook. Yet a Federal law passed in the 1990s, the Communications Decency Act, protects most users from legal liability for re-posting web content. While employers may generally discipline or discharge employees who re-post or forward others’ criticisms, this immunity limits the types of legal action an employer may take. Additionally, these protections also apply to internet providers and thus create obstacles to proving who posted anonymous complaints online.

Given the complicated legal landscape surrounding employee online conduct, employers should seek legal assistance in confronting these situations, and implement effective technology use and social media policies. With this guidance, employers can prevent harm to their businesses and protect themselves against potential legal liability from employee online complaints.

This is intended for educational purposes only, and is not intended to provide legal advice nor is it intended to create an attorney client relationship with the recipient of this email.

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