Can an employee be suspended or fired for “defaming or orally putting rude comments online” during employees after hours?

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Can an employee be suspended or fired for “defaming or orally putting rude comments online” during employees after hours?

My husband works for a company and posted “rude, defaming companies policy, and disrupting employee’s work environment.” He recently received a 3 day suspension, and his employer under investigation for this act. The act he made was after his work hours, and offense was not done at the time of his work duties. Is this something an employer can do?

Asked on December 27, 2011 under Employment Labor Law, California

Answers:

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

Answered 9 years ago | Contributor

As a general rule, you can be supended for this. In an "at will" employment arrangement an employer has a great deal of discretion in setting the terms and conditions of employment much as it deems fit. This includes disciple for comments made on social networking sites. So unless there is an employment contract or union agreement that prohibits this action, his suspension violates existing company policy, or his treatment constituted some form of actionable discrimination, he has no legal recourse here.

However, there is an exception regarding the disciplining (or termination) of an employee for making negative on-line comments if the griping amounted to "protected concerted activity". In some instances, the Facebook chatter may be no different from workers gathering around the water cooler to discuss working conditions. The National Labor Relations Act prohibits employers from punishing employees, whether or not they are members of a union, for talking about wages or workplace conditions or forming a union. The idea is to more easily enable communication among workers so that they can decide if a union is necessary.

So whether or not he can be suspended depends on the circumstances surrounding his comments. If it was just for negative remarks made to your family and/or his friends with no other purpose, then suspension is an appropriate remedy. If it was regarding comments to made to other employees for the purpose of improving working conditions, then he is probably protected. At this point, if you still have questions he should consult with an employment law attorney.


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