The previous two posts discussed how more and more employment law cases going before the courts involve social media. This week, an NLRB judge is set to hear the NLRB’s first complaint involving social media. As an increasing amount of these complaints go before judges, more case law will be established in this relatively new area of law. For now, employers are treading tricky ground when they follow their employees into social media spaces.
A recent article by Jeanette Borzo published by The Wall Street Journal looks at a few of these cases and discusses how firing employees for certain uses of social media has backfired for several employers. The WSJ mentions several cases, including one where a high school teacher was fired because she posted a photo on her Facebook page that showed her holding a glass of wine while on vacation. Her lawsuit against the school district for wrongful termination is still pending.
Another case mentioned by the WSJ involved the firing of two restaurant employees for setting up a Myspace page where employees could complain about their employer. The page was password-protected and was not meant to be seen by managers. The employees sued and a jury found that the managers had violated the federal Stored Communications Act. The jury awarded the two terminated employees back pay and other damages. The restaurant appealed the decision and both parties later settled the case.
It is probably a good idea, notes the WSJ, for employers to create a policy for employees’ appropriate use of social media and to train employees on that policy. A specific policy could clear up confusion for employees about how to navigate the intersection of social media and the workplace. It is likely, however, that this intersection will be confusing for some time and will be worked out in the courts.
Employers Tread a Minefield (The Wall Street Journal)