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Firing Employees for Social Media Posts

Can you fire an employee for a Facebook post?
If the post constitutes insubordination, then yes.
The National Labor Relations Board (“NLRB”) recently affirmed an employer’s right to rescind rehire letters to two employees who made insubordinate remarks on Facebook.  The employer operated an after-school program.  At the end of the summer, the two employees received letters inviting them back to work the following school year.
The employees discussed the letters via one of the employees’ Facebook pages.  In this exchange, the employees spoke about refusing to obtain permission before organizing youth activities, disregarding specific school-district rules, undermining the organization’s leadership, and neglecting their duties.  One of their co-workers forwarded a screenshot of the conversation to the non-profit’s management.  After reviewing the exchange, management decided to rescind the employees’ rehire offers.
The NLRB affirmed this decision, acknowledging that the employees’ exchange “described a wide variety of planned insubordination in specific detail.”  There was nothing that could be misconstrued as “a joke, or hyperbole divorced from any likelihood of implementation.”  On these grounds, the NLRB recognized that it was reasonable for the employer to believe the employees would act on their plans and that the employer did not have to wait for the employees to follow through on these plans before taking action.
As we have discussed in previous ETTs, an employee “liking” or commenting on someone else’s social media post can garner protection under the NLRB.  In these situations, an employer cannot retaliate against the employee for that social media activity.  This recent case, however, shows that employees are not free to say whatever they want about their employer on social media.
If you discover an employee's social media post that violates company policy, before you take any action against that employee, consult a member of MacDonald Illig's Labor and Employment or Emerging Technologies Practice Group.  What may appear to be insubordination at first glance, may actually be protected activity.  And vice versa.
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