May a defamatory comment posted by an employee on his or her Facebook page be used as evidence in the employee's disciplinary proceedings?

Author: William Denham, Shortt & Nguyen, PC

Yes. However, whether an employee's defamatory comment on Facebook may be used as evidence in a disciplinary proceeding will require consideration as to whether the employee's comment is protected speech under either the First Amendment or under Section 7 of the National Labor Relations Act (NLRA).

Employees, both union and nonunion, have a right to engage in protected concerted activity under the NLRA. In evaluating whether a posting is protected speech, the employer should examine whether:

  • The employee's co-workers had access to or responded to the postings;
  • The posting is related to the employee's terms and conditions of employment; and
  • The posting elicited discussion and suggested group action.

If the posting is not protected, the employer may reasonably discipline the employee if the posting is offensive, inappropriate or harassing and use it as evidence in disciplinary proceedings. If the posting is protected speech, it may not be used as evidence in the employee's disciplinary proceedings.