Employment law evolves as more workers use social media

The law continues to evolve with regard to what speech is a legally fireable offense and what speech is protected by law. This is especially the case when it comes to speech about work-related matters on social media websites like Twitter and Facebook. Indeed, this shifting legal gray area has even enabled some companies to fire employees for speaking negatively about their jobs online. Employment law related to speech is more complicated than it may seem at first; while some companies have gone too far and unlawfully terminated employees for simple comments, other comments deemed offensive or unrelated to work matters may be considered legitimate grounds for firing.

While some states have instituted more comprehensive laws protecting online speech from being a fireable offense, others have not. Some states, Wisconsin included, are known as "at-will" states, meaning that employers can fire employees at will as long as their reasoning is compliant with federal regulations, but Wisconsin and most other at-will states also have notable exceptions that limit an employer's reasons for terminating employment. The legal issue, however, is whether there is a federal basis for online speech protection for employees all across the United States.

Recent rulings on social media

It goes without saying that companies don't want their employees making comments outside the workplace that disparage their brands. Many companies have policies limiting what workers can say online about the company, with violations being a potentially fireable offense.

Recent rulings by labor regulators have declared that these far-ranging policies are illegal under federal law. Policies must be more specific with regard to expression on social media. According to the National Labor Relations Board, workers have the right to freely discuss negative aspects of work conditions both at the office and on social media like Facebook or Twitter. Federal law has long protected the right of employees to discuss work issues at the water cooler; social media law and employees' rights are taking those "water cooler protections" and applying them to social media and other online sites.

At the same time, employers may act against employees who "rant against" the company, managers or co-workers online. The devil, however, is in the details and begs the question of when an employee's comments become actionable.

Examples from Milwaukee and across the country

In an article from Mount Mary College's online newspaper Arches, Claire Hanan, editor of Milwaukee Magazine, shared that a friend of hers was fired from her job for a single tweet criticizing her workplace. The woman did not file a claim against her company, but Hanan has said that all employers keep tabs on both current and potential employees' social media accounts. This is especially true for individuals whose job it is to post to company-owned social media, Hanan said.

Similarly, according to an article in The New York Times about social media and employment law, five workers at nonprofit Hispanics United of Buffalo, N.Y., dealt with the loss of employment because of an online discussion about work. The workers posted angry Facebook messages complaining about their workload and implications from co-workers that they weren't working hard enough. When management at the nonprofit got wind of these responses, the workers were fired. The federal labor board recently concluded that they were fired unlawfully, stating that these posts were focused on work conditions, the type of speech protected under the National Labor Relations Act.

On the other hand, a police reporter with the Arizona Daily Star posted several Twitter comments about the lack of capital crimes in the city, including, "You're slacking, Tucson," and "Stay homicidal, Tucson." She was fired by the newspaper for making offensive comments. The National Labor Relations Board ruled in favor of her employer because the posts were not directly about working conditions.

Social media going forward

The National Labor Relations Act was enacted in 1935, but over eighty years later it remains relevant to laws governing new communication technology. If employees or former employees believe that they have been harassed or have suffered wrongful termination on the basis of their social media postings, they should consult with an employment rights lawyer.