Deal With an Employee Who Has Posted Negative Comments About the Company on Facebook or Other Social Media

Key Points

  • It is prudent for employers to prepare and implement a social media in the workplace policy in order to avoid risks of disclosure of confidential and proprietary information and claims of cyberbullying, harassment and discrimination.
  • Communication and consistent enforcement of the social media policy to all employees will avoid claims that employees were unaware of the policy.
  • Employers should aim to strike a balance between monitoring employee activity on social media and respecting employee privacy rights.
  • Social media policies should clearly articulate the legitimate business interests the employer seeks to protect as well as provide clear definitions of prohibited behavior and private and confidential information and spell out the consequences for violations of the policy.
  • An employer should use caution when disciplining employees based on social networking activities as certain union and nonunion employee rights need to be considered.
  • Both union and nonunion employees have a right to engage in protected concerted activity under Section 7 of the National Labor Relations Act which means employees may engage in collective action to improve their wages, hours and working conditions. An employer should be extremely cautious when monitoring or disciplining an employee for engaging in such conduct as related to employment issues even if the employee's comments are offensive and inappropriate. An employer should be careful about disciplining an employee for negative comments regarding the employer's business, policies or employees because the employee may be engaging in protected concerted activity.
  • An employer may be able to discipline an employee for making negative comments about customers or clients, disclosing an employer's trade secrets and confidential and proprietary information; violating an employer's intellectual property rights and using protected information for business and commercial purposes; or harassing, libeling, threatening, or defaming fellow professionals, employees, clients or competitors or anyone else in a way that violates the employer's policies.

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