Lynne Curry on Workplace: Can online 'likes' be cause for termination?

THE WORKPLACEOctober 27, 2013 

If your manager or company's owner runs for the Legislature or Assembly and you openly support the candidate running against him, can you be fired?

What if a co-worker mouths off about your employer on Facebook and you simply "like" her posting?

Here's what you need to know -- from a real-life story.

When Jim Adams ran against Sheriff B.J. Roberts and Roberts won, Roberts fired multiple employees.

Deputies Daniel Carter Jr. and Robert McCoy worked as jailers in the sheriff's office Correction Division with Jim Adams. Both visited Adams' campaign Facebook page. Carter liked the page and posted and signed an encouraging message. McCoy also posted a supportive entry. Their actions became well-known.

Sheriff's Deputy Ramona Jones threw a cookout attended by Carter and many sheriff's office employees. Carter invited Adams to the event.

At shift changes, Roberts let employees know he disapproved of those who supported Adams' candidacy on Facebook and said those who openly supported Adams would lose their jobs. The sheriff also told Carter that "after the election, you're gone."

After winning the election, the sheriff didn't reappoint those who attended the cookout or who liked his rival on Facebook. Carter and McCoy sued, claiming this violated their First Amendment free speech rights. Roberts denied this, saying his reason for wanting Carter gone related to Carter's objections to disciplinary proceedings involving Carter's wife.

Although the district court concluded that merely "liking" a Facebook page is insufficient speech to merit First Amendment protection, a September 2013 4th U.S. Circuit Court of Appeals decision ruled Roberts may have violated his employees' free speech rights and may need to reinstate the employees.

According to the ruling, "Liking a political candidate's campaign page communicates the user's approval of the candidate and supports the campaign by associating the user with it." That constitutes "the Internet equivalent of displaying a political sign in one's front yard, which the Supreme Court has held is substantive speech."

Although the ruling in Bland v. Roberts deals with public sector employees, it has implications for private sector employees and employers.

First, the National Labor Relations Board is deciding whether "liking" a comment on Facebook constitutes protected concerted activity for private sector employees. In a case before the NLRB, an employee posted a Facebook status regarding her employer's alleged failure to correctly withhold an accurate amount of taxes from her paycheck. After her co-worker "liked" this status update and the employer fired both employees for performance issues, an NLRB administrative law judge ruled the employer had retaliated against them for protected concerted activity.

Second, consider what happens when a manager learns too much about an employee's private life through social media. If the manager then terminates the employee, the employer has to prove potentially illegal information didn't cause the termination. Given the Fourth Circuit's decision, employers need to exercise caution when viewing applicants' and employees' social media activity, including their "likes." Although searching social media aids when recruiting and screening employees, it provides employers information they can't lawfully use.

Companies should caution managers against "friending" employees on Facebook; they may learn too much information. If a supervisor sees information and later fires the employee, the supervisor may have to prove this information didn't influence the termination. This may eliminate an employer's ability to get a summary judgment because a trial may be required to determine whether the supervisor relied on the information in her decision.

Third, when investigating allegations that an employee's personal social media conduct violated company policy, employers need to focus their investigation on the social media posts reflecting the alleged misconduct. Wide-ranging scans of the employee's off-duty social media conduct might violate the employee's privacy rights and any state laws related to off-duty conduct.

The bottom line? Employers have rights but not absolute ones. Even though the sheriff didn't want individuals on his team who openly opposed him, he couldn't trample their employee rights without risk. If you're an employee, remember that what you post on social media often has a long half-life. Do you want to risk termination -- in the hopes your employer won't see what you post?

Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send your questions to her at lynne@thegrowthcompany.com. You can follow Lynne on Twitter @lynnecurry10 or through www.workplacecoachblog.com.

 

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