Firings over things posted on the social network form the basis of about two dozen pending lawsuits in the U.S., including many championed by the National Labor Relations Bureau.
That doesn’t include two settlements — because they settled out of court, a complete legal precedent on this subject has yet to be reached. However, both settlements included the employers in question revising their policies regarding whether posts on Facebook can become grounds for termination.
A settlement in February between the NLRB and American Medical Response of Connecticut Inc.,concerned an employee fired because of complaints about her work; she’d posted on Facebook gripes of her own about the employer, which ultimately had to revise its policies regarding online communications but didn’t have to rehire the woman.
And an April case that NLRB settled out of court involved a claim of retaliation for Facebook comments about possible labor code violations by Build.com. This settlement seemed more favorable toward the terminated worker: she declined an offer of rehire by the company but did accept reimbursement for lost earnings; and the employer posted signage in the workplace saying the company can’t terminate anyone over what they post online.
Meanwhile, courts continue to schedule hearings of new suits involving Facebook posts by terminated employees.
One such case in the Chicago suburbs involves a luxury auto salesman fired after complaining on Facebook that the dealership’s complimentary food and beverages seemed cheap compared to the otherwise high-end branding efforts of his now former employer.
Now that’s what the NLRB attorney said the terminated employee posted. The dealership claims that said individual had uploaded a picture showing another salesperson’s auto accident during a test drive with a customer. Unless this case also settles out of court ahead of time, we won’t know which photo actually went up online until the trial begins on July 21.
And an NLRB filing a week prior alleges that a nonprofit organization wrongly fired five employees who aired their grievances on Facebook. The case goes before an administrative law judge on June 22, assuming there’s no out-of-court settlement.
We think that as long as this area of the law remains vague, this type of lawsuit will continue to come forward. Either laws on freedom of speech and employment need amending to include social media, or at least one solid decision by a court has to set a precedent that the rest of the legal and employment community can follow.
Readers, what do you think about this particular trend in employment law — do posts by employees count as a form of speech protected by the First Amendment in the U.S.? And what about possible suits in foreign countries?