What can an employer do when an employee has posted negative comments on Facebook or another social networking site?

Author: Jessica Sussman

An employer should first consider whether the activity may be viewed as protected concerted activity. In evaluating whether a posting is protected, the employer should examine whether:

  1. The employee's coworkers had access to or responded to the postings;
  2. The posting is related to the employee's terms and conditions of employment; and
  3. Whether 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. An employer should intervene when an employee's online actions place the employer at legal risk, including sharing confidential information or harassing coworkers.