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Social Media and Employment Termination in Virginia

One question that is being increasingly asked by our firm’s business clients is: Can I terminate an employee due to comments posted by the employee on Facebook or Twitter?

While the instinctive answer is “yes” since Virginia is an at-will employment state, the actual answer can be much more complicated.  Each case is different, and the answer to the question depends on the type of employer/employee, as well as the actual content posted by the employee.  Some speech may be protected under the 1st Amendment to the U.S. Constitution (i.e. speech about matters of public concern by public employees), and some speech may be protected as “concerted activity” under the National Labor Relations Act (NLRA).  It is beyond the scope of this article to identify exactly when and how social media postings may be protected.  Therefore, before firing an employee on account of a social media posting, the employer should consult with an attorney to determine if the speech is protected under federal or state law.

There is no case law in Virginia which is directly instructive on the issue of whether an employee can be terminated for social media postings.  The U.S. District Court for the Eastern District of Virginia recently stopped short of answering the question as it pertains to public employees. In Bland, et al. v. Roberts, 2012 U.S. Dist. LEXIS 57530, several deputy sheriffs filed suit alleging that they were improperly let go for having “Liked” the sheriff’s opponent on Facebook in a recent election.  They argued that the Facebook posts concerned matters of public concern and, therefore, were protected speech under the First Amendment.  The court ruled that “Liking” a post on Facebook is insufficient speech to merit First Amendment protection, and therefore did not address the more important question of whether written Facebook posts can be protected free speech.  The case has been appealed to the U.S. Court of Appeals for the 4th Circuit.

There is a body of administrative law rulings by the National Labor Relations Board (NLRB) in which the NLRB has determined that employees were terminated in violation of the National Labor Relations Act (NLRA) for derogatory posts made on Facebook about their employer.  In Hispanics United of Buffalo, 359 NLRB No. 37 (Dec. 14, 2012), the NLRB affirmed the ruling of an administrative law judge that the termination of five employees, due to posts made on Facebook, was in violation of the NLRA.  The ruling can be accessed from the NLRB website here: https://www.nlrb.gov/cases-decisions/board-decisions

The NLRA provides that it is an unfair labor practice to restrain employees from engaging in “concerted activities” for the purpose of collective bargaining or mutual aid or protection. In this case, one employee placed a post on Facebook regarding a fellow employee, and four other employees commented on the post.  These employees were subsequently terminated on the basis that posts constituted bullying and harassment of the employee-subject, and violated the employer’s policy on harassment.  The terminated employees initiated an action pursuant to the NLRA, contending that the posts on Facebook amounted to protected “concerted activity” under the NLRA.  An Administrative Law Judge agreed, stating that employees have a protected right to discuss matters affecting employment amongst themselves, and the NLRB affirmed the Judge’s ruling. The employer was ordered to reinstate the employees and pay back-wages.

Accordingly, if you intend to terminate an employee on account of social media postings, you should first consult with an attorney to determine if the speech is protected.  In every case, the content of the posting and the nature of the employment should be assessed to determine the employer’s legal rights. 

As added protection, the employer should consider adopting a social media policy for its employees, with the intended effect of discouraging controversial postings.  This policy should be written in consultation with an attorney, as the NLRB has struck down several social media policies that are not overreaching in nature. In addition, the employer may want to consider including social media restrictions in its employment agreements.

If you need legal help with employment matters relating to social media, Gross & Romanick can assist you.  Send us an e-mail to law@gross.com or contact us at 703-273-1400.