Online Off the Clock: Can Your Internet Activities Get You Fired?
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. January 7, 2015
By Michael T. Landen
Social media is now an integral part of our society and our jobs, and the number of popular sites grows every day. Be it Facebook, Instagram, LinkedIn, Twitter, Craigslist, Google+ or any other number of social media outlets, most of us are engaged in social media every day. With so many people posting, liking, sharing, commenting, advertising and the like, it has become inevitable that social media impacts our work environment too, and employers cannot (or should not) ignore its use. While many employers have (or should have) policies regarding online usage during the work day, a significant gray area exists regarding online usage by employees while not “on the clock.” While the case law in this area is still evolving, the courts have supported the firing of employees based upon their online conduct. However, as the ubiquity of social media grows, it is important for employers to educate themselves on the various social media options, stay abreast of new trends, and create and maintain comprehensive, relevant social media policies for their employees.
Some employers choose to ignore social media completely, by failing to create internal policies for employees. Others encourage and expect employees to be online and promote the use of social media in the workplaces. But most employers fall somewhere in the middle, acknowledging the use of social media but failing to create, disseminate and enforce policies. Yet, an employee’s online activities, even those conducted after hours may reflect poorly on the company’s image. For example, the following types of social media activities may be objectionable to an employer: complaining about an employer, supervisor or other employees; sharing sensitive information about an employer; sharing, commenting on or liking a page or article that has racially charged undertones; or posting pictures of oneself using drugs, drinking excessively, or engaged in other improper conduct.
There is precedent for upholding termination for certain online activities by employees. In San Diego Unified Sch. Dist. v. Comm’n on Prof’l Competence, 194 Cal. App. 4th 1454 (Cal. Ct. App. 2011), the San Diego school district fired a teacher for posting an ad on Craigslist soliciting sex where the ad contained extremely graphic language and nude photos.. After the ad was discovered by a parent, the teacher was notified and he immediately removed it, claiming it was posted on an adults-only site and he never intended any students to see the ad. However, the court found that the teacher’s conduct “constituted grounds for dismissal based upon his evident unfitness to teach and his immoral conduct.”
Similarly in Shepherd v. McGee, 986 F. Supp. 2d 1211 (D. Or. 2013), a child protective services worker was terminated after she posted negative comments on Facebook regarding her clients. She also posted other comments about sterilizing people who have had their parental rights terminated. The Court in Oregon ultimately found there was adequate justification for firing the employee because the employer’s interest in preventing workplace disruption outweighed the employee’s interest in free speech.
In Arizona, a police officer was terminated for running a sexually explicit website featuring himself and his wife. The police chief approved the dismissal finding that the officer’s actions brought discredit to the city service. The court agreed and upheld the officer’s termination. Dible v. City of Chandler, 515 F.3d 918 (9th Cir. 2008).
In the private sector, in Rodriguez v. Wal-Mart Stores, Inc., 540 Fed. Appx. 322 (5th Cir. 2013), an employee was fired from Wal-Mart for commenting on another employee’s Facebook posts in violation of the company’s social media policy, which prohibits posts that are “unprofessional, insulting, embarrassing, untrue, [or] harmful.” However, in the case of Bland v. Roberts, 730 F.3d 368 (4th Cir. 2013) the court found that three employees who “liked” the Sherriff’s political opponent on Facebook were engaged in speech protected by the First Amendment. The Court therefore found that an issue of fact existed as to whether they were fired for engaging in protected speech.
Read together, these cases appear to support the First Amendment right to free speech, but allow employers to terminate employees if their social media conduct reflects poorly on the employer. This broad-based policy will likely face many challenges as social media use expands and evolves. For example, if a woman who works at Planned Parenthood attends peaceful anti-abortion rallies on the weekends and posts pictures of the rallies on social media, can she be fired?
With respect to union employees, an employer’s rights are even more nebulous. The National Labor Relations Board has issued a series of decisions that seem to limit employers’ rights to regulate union activity relating to social media. The NLRB has equated social media sites to the “water cooler” and has generally found online conversations to be protected speech, particularly where the online conversations represent discussion about workplace conditions. In one recent case, an employee was fired from Knauz BMW in suburban Chicago for posting pictures online of an event at the dealership, making fun of the event’s cheap food and worrying that it would hurt car sales. Karl Knauz Motors, Inc., 358 NLRB No.164 (2012).  The employee also posted a picture of a BMW that had accidentally been driven into the pond by a teenager at the event. The administrative judge agreed that the first posts regarding the quality of the event were protected concerted speech about workplace conditions; however, the picture of the car in the pond did not address workplace conditions and therefore the administrate judge upheld the employee’s firing on those grounds.
The NLRB has also rejected social media policies of many of employers on the grounds that the rules are vague and ambiguous and the NLRB has pressured the employers to create policies that clearly and unambiguously set forth an employee’s responsibilities regarding social media usage and outline what is and is not permitted for union employees.
Because the issue of monitoring social media usage is ever-evolving, it is important for employers to consult with their employment attorneys in order to stay informed about recent developments in case law and to create and regularly update a strong company-wide social media policy that explains to employees the types of conduct that will not be tolerated. Social media is here to stay and there is little doubt that an employee’s online conduct can reflect – poorly or positively – on the employer. Thus, it is critical to incorporate social media policies into the basic tenet of office culture, much like a dress code or vacation policy. Employees will know what to expect and employers can hope to encounter fewer surprises from their employees online.