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Employees & Social Media

Generally, an employee can be fired for having a personal website or blog that the employer deems inappropriate, with very limited exceptions. Even if the employee has a non-work related website that the employee doesn’t access from their office, employers can fire them if they feel the content on their personal site or blog is offensive to the employer or to potential clients, or reflects badly on the company. Although an employee may legally be fired for their content on social networking and social media websites, the National Labor Relations Board (NLRB) has stated that, under Section 7 of the National Labor Relations Act (NLRA), workers’ social networking and social media usage can be protected if it is “concerted activity” for the purpose of collective bargaining, mutual aid or protection. An individual employee’s action is “concerted” if it is a continuation of earlier discussions with coworkers that contemplated group action regarding terms and conditions of employment. See Marco Transportation 39 NLRB Advice Mem. Rep. 60 (2011). 

The NLRA also protects statements made during the course of protected conduct unless they are egregious. The NLRB considers 4 factors when determining whether an employee who is engaged in protected, concerted activity has by harsh or shameful conduct lost the protection of the Act: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by an employer’s unfair labor practice. See American Medical Response of Connecticut, Inc. 39 NLRB Advice Mem. Rep. 15 (2010). Union-related activity deserves special attention and demands additional consideration because it may afford employees certain protections—although this is a concern for union and non-union workplaces alike.

While it is customary to discover useful information by checking out a candidate’s social media accounts, personnel involved in the hiring process also run the risk of discovering protected information i.e. information about the candidate’s race, color, religion, sex, national origin, military status, marital status, age, disability or genetic information. Even if this information is not used, there can be an inference that the information was discovered and used in the hiring process. It may be difficult for the candidate to prove as much in a lawsuit, but the employer can still rack up a huge amount in legal fees defending against such claims.

Ean Harris