Every week, it seems there is another story of someone being fired for something wrote on either Facebook or Twitter. Because we believe it is our mission here to help educate the workers of New York City and because we don’t want to see more people lose their jobs, we recommend that employees exercise caution in the Facebook and Twitter usage. The old saying, “Don’t say anything you wouldn’t want to see on the cover of the New York Times,” is just as true as ever in this age of social media.
Posting on Facebook or Twitter are treated the same as any other workplace discussions – only they can be preserved for all eternity. As we have commented many times on our blog, New York is an at-will employment state, so your employer can terminate your employment for any or no reason – including because they didn’t like what you wrote on a social media website. By the same token, if you call out sick and your boss sees that you are posting pictures from Mexico, he would be perfectly justified in firing you for improperly taking a sick day. That being said, there is one growing area of protection for employees.
The NLRA’s Protection of Concerted Activity
There are certain times where your comments on a social media site can be considered protected activity which an employer cannot legally use as a basis to terminate your employment. While the National Labor Relations Act is generally considered to protect employee’s rights to organize, join and participate in labor unions, the law goes much further than that and protects employees that engage in “concerted activity” – which is defined as two or more employees taking action for their mutual aid or protection regarding terms and conditions of employment. Examples of concerted activity include:
- two or more employees addressing their employer about improving their pay;
- two or more employees discussing other work-related issues (e.g., safety concerns); or
- an employee speaking to to an employer on behalf of one or more co-workers about improving workplace conditions.
So if your Facebook/Twitter posts can fit in one of the above categories, then you may be protected – but we suspect that the vast majority of people’s posts do not fall into these categories, so consider yourself warned. Finally, here are some helpful tips from aol.com about posting on social media and not getting fired.
[UPDATE] Union Employees
The above does not necessarily apply to many members of labor unions that can only be terminated for “cause” – meaning that they are not “at-will” employees. As a result, an employer can’t simply fire a unionized employee for something that they post on Facebook. A recent case involving a N.Y.C. Department of Education teacher provides a good example of the protection provided to unionized employees.
According to court documents, Christine Rubino was a teacher at the P.S. 203 in Brooklyn who, after a bad day at work, vented on Facebook: “After today, I am thinking a field trip to the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devil’s spawn!” Her post was an apparent reference to an incident the previous day where a student at another school drowned during a field trip. A colleague reported Rubino to administrators and an investigation was conducted. While Rubino initially said that a friend had written the posts – and her friend initially took the blame – she later recanted. Rubino was then fired and an arbitrator upheld the termination, however, Rubino appealed and a judge reversed the decision, finding that the DOE’s punishment was too severe. The DOE challenged the judge’s ruling, but an appellate court upheld it. While the appellate court found that the comments were “clearly inappropriate,” the court noted that (i) Rubino was just venting to her Facebook friends after a bad day at work, (ii) the comments were not meant for the public, students or parents, and (iii) Rubino eventually admitted to making the comments and that they were improper. [NYTimes]
Thus, the lesson to be learned here is that unionized employees have significantly more protection when it comes to posting on social media websites that “at-will” employees and that comments that are clearly inappropriate, vile and/or disgusting may not be sufficient “just cause” for termination – at least not in New York City.
If you have additional questions or if you have been fired from your job and would like to be connected with an attorney to discuss whether you were fired unlawfully, please contact us here.