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At a time when employees are networking online in new ways, they are also posting online – on sites like Facebook, Google, and other social media sites – and at times these posts are rants about their employer. The question is when can you fire an employee for posting something online?
The National Labor Relations Board, the government agency tasked with investigating unfair labor practices, has come out with some guidelines for what employers can and cannot include in social media policies.
Notably, even the use of crude or insulting language in the posting relating to the employee’s place of work or supervisor(s) is usually not enough to remove it from protection.
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Employers may still prohibit postings that threaten, intimidate, or harass coworkers or supervisors, or those that violate policies against discrimination, harassment, or hostility based on age, race, religion, sex, or other protected classes/characteristics – as long as it does not otherwise restrict the employee’s right to discuss work issues.
Although the NLRB has begun to acknowledge that statements made on social media sites have the potential to be more damaging to a business than typical “water cooler talk” in an office, the Board has still come down as highly protective of employees in this context. Employer policies on such postings and discussions cannot restrict employees’ speech more than federal labor law allows – so in general, anything an employee posts regarding wages or work conditions must be allowed. Employers must exercise caution when deciding whether or not to take disciplinary action against employees who post about work on social media sites, as the policies heavily favor employees at this time.
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