What are the legal ramifications for an employer who discharges an employee for making a comment to another employee via a social media website?

Asked on October 27, 2011 under Employment Labor Law, Florida

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

There may or may not be ramifications for such a discharge. The fact is that in an "at will" employment work arrangement an employer can set the terms and conditions of employment as it deems fit. This includes discipline/discharge for comments made on social networking sites. So unless you have an employment contract or union agreement that prohibits your dismissal for this, or your termination violated existing company policy, or your treatment constituted some form of actionable discrimination, your employer acted within lawful bounds. The general rule is that an employee may be dismisses due to comment made on a social networking site.

That having been said, there is an exception regarding terminating an employee for such postings (i.e. making negative on-line comments about their employer) if the griping amounted to what is termed "protected concerted activity". Under federal labor law, an employer cannot fire a worker for such comments. In some cases it has been found that on-line posts may be no different than workers gathering around the water cooler to discuss working conditions. The NLRA (National Labor Relations Act) prohibits employers from punishing employees for talking about workplace conditions, wages or forming a union (whether or not they are currently union members). The idea is to enable communication among workers in order for them to decide if in fact a union is necessary.

Based on the limited facts presented it's unclear just exactly what comments were made. Therefore, it cannot be determined if they were protected or not and consequently whether such a termination was wrongful. At this point you can consult directly with an employment law attorney in your area as to your rights and possible remedies.


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