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November 10, 2010

Employee Posts Become Even More Controversial

You may have read the news today and saw the headline Labor board: Facebook vent against supervisor not grounds for firing, but not have clicked on it in lieu of Mobile phones may diagnose STDs. However, I encourage you to go back and take another look …

As a former reHeidi Strand | Social Mediacruiter (many years ago now), I was pretty up-to-speed in the whole HR legal side of business. Today, I just keep my ear to the ground and do some limited speaking engagements on the meshing of HR and social media. So, while this headline may not have peaked your interest … it did mine.

And what a piece of news it is! Wow. This may be a defining moment in social media should it come to pass. So let’s recap:

(Legal note: The following is paraphrased and editorialized and should not be misconstrued as actual fact in any way shape or form. For full coverage, valid reporting and balanced coverage, visit www.cnn.com.)

  • Employee blasts supervisor many times on Facebook – it gets real ugly.
  • Other employees chime in, too, adding equally unflattering remarks.
  • Employee gets fired.
  • Employee goes to union labor board and questions firing decision.
  • Labor board goes bonko and states that the posts are a “protected concerted activity.”
  • Everyone’s up in arms and it’s goin’ to trial.

Or close to that scenario, but you get the drift.

Here’s the thing. It is possible that the court will find her unprofessional rantings not just cause for firing based solely on the fact that she is considered to be a union employee (or in a position that could be a union employee). Her comments, while defamatory, were conducted on her own time, not at work. And, here’s the real kicker, because the other employees added their comments in as well, it is considered to be “water cooler” talk. If they hadn’t chimed in, it would be a different scenario.

Now, what does this mean for business’ highly crafted social media policies? For the most part, not a lot. Professionals and supervisors can still get sacked if they pull that same stunt if there is a social media policy in place that states as such. But for other positions, it may mean something all together.

Of course, until the courts decide, we won’t know for sure. But, this is a critical issue. Because it isn’t truly just “water cooler” talk now is it? It’s viral. It’s employees and all of their friends and their friends of friends.

I think HR professionals will want to keep close tabs on the result of this battle. It may significantly influence future social media policies, but more than that, no one wants a lawsuit should this case be found in favor of the plaintiff.

That being said. I do just want to point out the ridiculousness of this situation. Why would anyone lambaste their supervisor or employer on Facebook in the first place? Where have common sense and manners gone?

I mean, really. If we would simply all follow our mother’s advice: “If you have nothing nice to say, then say nothing at all.” Then, we wouldn’t even need those pesky lawyers and our world would be rainbows and unicorns.