Firing an employee for what they wrote on Facebook
TABHR
18 Posts
We have an employee who works the nightshift and has posted on Facebook that she spends most of her time sleeping. Are we able to terminate this person based on this information?
Comments
Here are a few things to think about:
What if it turns out that what they said on Facebook is not true? Would that bother you or change your mind about the termination? Might it be better to fire them under some sort of code of conduct provision rather than for sleeping since you have the text but you don't apparently have the sleeping on record as actual fact?
Now consider the possibility that this is true: what does that say about the employees' supervisor? Shouldn't you consider discipline of that person as well? You'd think the employee's poor productivity or the act of sleeping itself would come to the supervisor's attention.
How did you find out they wrote it there? Are there any breach of privacy concerns?
Let me start out be saying I may not agree with the fallout of all of the social media however it is a force to be reckoned with. I am the owner of an HR Consulting Firm and a Civil Mediator and have been involved in these battles with employers, employees, and my 5 children ages 20-33! So please don't kill the messenger!
Is there a right to privacy once posted online - first case of termination for Facebook or MySpace was Editor at magazine writing negative comments about the organization - you could implement a BLOG Policy which is what we recommend to our clients. I have clients who are reviewing Facebook pages and any other means prior to hiring. May not be indicative to who the person is in their professional life however it is carrying weight in their decision. Also colleges are reviewing these as well - so advice to all students and employees - would you want your parents, boss, or potential employer seeing your entries on any of these media locations? i.e. How you spend most of the day trying to complete your "farm"???? how drunk you were last night? Or excessive disrespectful language or opinions? Its upsetting that this media frenzy has all happened however we cannot ignore the ramifications of posting anything in a place that can be seen by the general public.... and BTW YES you may have a personal password - however don't count on it protecting your Facebook - there are IT and programmers working for less than sophisticated companies that area able to gain access.
There is potential for a privacy concern depending on how the employer found out about the message. Facebook defaults to privacy: the "wall" is not publicly available. Moreover, this is not a case of disparaging the company in a public forum, it's the case of someone saying they sleep on the job.
Although a blog specific policy may be helpful, in my opinion, a well crafted code of conduct will catch this and a wide variety of other issues as well.
I am not aware of a state that has a problem with firing employees for overt forms of disloyalty such as making public, disparaging remarks about the company, altough that can be protected if it's concerted activity. This case is not that case, so I don't think it's so simple as "off with her head."
Concerted activity is protected speech. Public employees enjoy a protected speech status as adjudicated by the United States Supreme Court in Pickering v. Board of Education, and clarified in Connick v. Myers. Private sector employees do not have the same protected speech rights in employment. A case can be made that if a private sector employee is expressing a matter of great public concern then they may fall into a protected speech category.
As as stated by TX above though, you really have little to go on except maybe some private bragging that has no sound basis. Plus there is no abuse of staff, company confidentiality or disloyalty. As our colleague even further above I have had my battles with public sector employees and social networking that have created some major problems. Employees do not understand that a lot of this is untested water and decisions will soon affect them sometimes grievously, for what is irresponsible talk that they have the freeness to say but do not enjoy a protection for saying it.
Though this is not the case here. Perhaps monitoring what the employee is doing would accomplish more than depending on a bland comment.
Concerted activity is protected speech. Public employees enjoy a protected speech status as adjudicated by the United States Supreme Court in Pickering v. Board of Education, and clarified in Connick v. Myers. Private sector employees do not have the same protected speech rights in employment. A case can be made that if a private sector employee is expressing a matter of great public concern then they may fall into a protected speech category.[/quote]
It's not that private sector employees have no free speech, but that exercise of that free speech outside of the employer's legally constructed policies can result in discipline up to and including termination. Your employer can require that you say, "George W. Bush was the best president ever" each and every time you go to the rest room and failure to do so can, by policy, result in immediate termination. They'll collect unemployment, but they'll be unemployed, and I really don't think it would be actionable.
This raises an interesting question. Let's say instead that an employee came to HR and reported they heard another employee in the break room saying all they ever do at work is sleep. Would you consider firing the first person solely on the information that they did in fact say that?
"The First Amendment provides free-speech protection to public, not private, employees because the Bill of Rights applies only to governmental actions. This means that a private employer generally can discipline an employee as he sees fit (unless the employer is found to be engaging in a discriminatory practice). While the private employer probably can fire an employee whose speech he dislikes, the First Amendment governs the circumstances under which public employers may discipline employees for their speech."
This is the essence of the problem that social networking sites and employees presents. What is free speech as contrary to protected speech and how far can a policy limit that speech or require speech even if it is legally constructed? A lot of those answers are still being worked out in court as we speak.
As to your question my answer would be no I would not consider firing that person based on that statement alone. Too many 'what ifs' in it. Could be that what was 'heard' was not what was 'said'. Could the reporting employee have a grudge against the other employee? Could there be competition for that one's job? Could it be a person complaining because of other motives affecting a protected class? Or maybe the reporting employee is telling the truth. That one statement, 'he said', is not enough to put a person's position in jeopardy.
I would have a talk with the affected employee if for no other reason than to alert the employee of the 'rumors' that I have heard, not to accuse. The conversation would dictate my next move.
"The First Amendment provides free-speech protection to public, not private, employees because the Bill of Rights applies only to governmental actions. This means that a private employer generally can discipline an employee as he sees fit (unless the employer is found to be engaging in a discriminatory practice). While the private employer probably can fire an employee whose speech he dislikes, the First Amendment governs the circumstances under which public employers may discipline employees for their speech."
This is the essence of the problem that social networking sites and employees presents. What is free speech as contrary to protected speech and how far can a policy limit that speech or require speech even if it is legally constructed? A lot of those answers are still being worked out in court as we speak.
As to your question my answer would be no I would not consider firing that person based on that statement alone. Too many 'what ifs' in it. Could be that what was 'heard' was not what was 'said'. Could the reporting employee have a grudge against the other employee? Could there be competition for that one's job? Could it be a person complaining because of other motives affecting a protected class? Or maybe the reporting employee is telling the truth. That one statement, 'he said', is not enough to put a person's position in jeopardy.
I would have a talk with the affected employee if for no other reason than to alert the employee of the 'rumors' that I have heard, not to accuse. The conversation would dictate my next move.
"The First Amendment provides free-speech protection to public, not private, employees because the Bill of Rights applies only to governmental actions. This means that a private employer generally can discipline an employee as he sees fit (unless the employer is found to be engaging in a discriminatory practice). While the private employer probably can fire an employee whose speech he dislikes, the First Amendment governs the circumstances under which public employers may discipline employees for their speech."
This is the essence of the problem that social networking sites and employees presents. What is free speech as contrary to protected speech and how far can a policy limit that speech or require speech even if it is legally constructed? A lot of those answers are still being worked out in court as we speak.
As to your question my answer would be no I would not consider firing that person based on that statement alone. Too many 'what ifs' in it. Could be that what was 'heard' was not what was 'said'. Could the reporting employee have a grudge against the other employee? Could there be competition for that one's job? Could it be a person complaining because of other motives affecting a protected class? Or maybe the reporting employee is telling the truth. That one statement, 'he said', is not enough to put a person's position in jeopardy.
I would have a talk with the affected employee if for no other reason than to alert the employee of the 'rumors' that I have heard, not to accuse. The conversation would dictate my next move.
Hi Cappy,
I was distinguishing private from public sector employee 1st Amendment rights, not challenging their respective, different statuses. Public sector employees are paid by tax dollars and their speech may be in the public interest or otherwise protected by a whistle blower statute or polivy. To be clear: private employer workers have no 1st amendment rights except as protected by other statutes. For example, speech in protected concerted activity is protected by the Wagner Act. Alternatively, certain forms of hateful speech that an employer might foolishly require of an employee could also result in considerable penalties because that type of speech is impermissible under a civil rights act.
The question was actually for the OP but I think this would be a great open discussion if anybody is interested.
I would not fire for the statement alone but would investigate what was stated. That is, I would show up during their shift over the next few days and if I caught them sleeping rather than working, their job would be terminated.
If they are not smart enough to post something that could potentially get them into trouble, then that are not an employee we want. As a matter of fact, I counsel new hires to password protect any of their social media sites that they participate in (because we are in a customer service environment and what they do outside of work is their own business). I do not "friend" employees on social media sites nor do I search out their comments. But if I hear about one, I will investigate what was said.
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Actually it was somewhat off topic. I referred more to the social network issue than the issue of sleeping on the job. I guess I have shown that is a pet peeve of mine.
An just so everyone will know I did not post three times. That came from the mods perhaps because I did modify a couple of times for clarity.
None-the-less I would do as I have stated at the end of the post but agree that a good idea would be to show up. Funny I did not think of that. Probably because I generally dismiss 'water cooler' talk.