Yes, You Should Be Fired For That Facebook Post. (No Matter What the Feds Say Next Week)

Facebook is a tool used by teenagers to torment each other and for adults to complain about their bosses, right? Except that your rude commment about your boss or your coworker, or your inapproriate comments about stupid stuff you did could land you on the curb.

Right now the National Labor Relations Board (NLRB) is preparing to hear a case where an employee was fired after criticizing her boss on Facebook. (Jon Hyman has a round up of information on this union firing.) But, the NLRB deals largely (although not exclusively) with union employees, who are definitely not "at will" employees, but are under contract.

I still think you should be careful.

I hear the screeching about free speech right now. Well, yes, you have the right to free speech, but I also believe that companies should have the right to terminate people who use that speech to denigrate the company. Free speech, not free from consequences speech. (And remember, it's only government suppression of speech that is illegal.) Most employees in the United States are at will employees, which means that there is no contract of employment and either party can end it for any or no reason, as long as the reason isn't an illegal one. For instance, you can't fire an employee because she's pregnant, but you can fire a pregnant employee, as long as the pregnancy isn't the reason.

So, why am I in favor of companies being able to terminate an employee for online behavior? (These things, of course, aren't limited to Facebook. Myspace, Twitter, and blogs are all good candidates for firing). Here are 3 Reasons.

1. Easy firing=easy hiring. I want companies to hire people. In fact, my fondest wish is that all my readers who are searching for jobs find one this year. The more restrictions government places on terminating employees, the more hesitant companies are to hire new people.
2. Bad judgment isn't limited to online behavior. Companies need employees they can trust to make good decisions. If you lack the critical thinking skills to say, "Hmmm, if I post that my boss is a jerk, my boss just might find out about it," then you probably lack the critical thinking skills to do your job. Yes, people vent. But the internet is not private. And anyone who thinks they can trust all their 476 friends to keep something quiet isn't someone I want on my staff.
3. Companies should be able to presume loyalty. I know, I know, your company doesn't care much about your career and they have no problem firing you, so why should you care about them? Because they pay you to care about them. In a pre-internet case where Delta airline employee was fired over a letter to the editor, "[t]he court in that case held that there '"is an implied duty of loyalty, with regard to public communications, that employees owe to their employers.' Stating that Mr. Marsh violated this implied duty of loyalty by publicly disparaging Delta, the court found that his termination was just." We forbid employees from giving information to the competitor, which would damage the company, so why not forbid employees from posting information that would hurt the company? The exception to this is when the company is engaging in illegal activity. Then employees should speak out and should be afforded whistleblower protection.

1. There are things you don't want to know. Honestly and truly, there are things out there about your employees that you don't want to know. Even though you can legally fire people easily, few companies allow you to actually do that. And there are lots of unemployed lawyers who would be happy to take your employee's case.
2. Some information cannot be considered. Yes, you know the gender, age, race, national origin and, frequently, religion and sexual orientation of your employees. But, you can't make decisions based on this information, so don't browse Facebook looking for it. Wonder if Jim is gay? What about that candidate? She looked Jewish. Hmmmm. Seriously, even though you wouldn't make a decision based on protected class information, doesn't mean you won't have to defend against it. If you don't know, your defense is much easier.
3. Your employees are not your friends. I know, you're a great boss and everyone loves you, but remember they love you because you are paying them. Please keep those worlds separate. Don't try to "friend" your employees on Facebook, and don't follow their personal blogs. (If they write career based ones, that's a different story.) The Evil HR Lady Rule of Work Relationships is that when you are with people from the office you are at the office. Please don't turn Facebook into the office. (And for heaven's sake, don't friend one or two members of your staff, but not the rest. Gah.)
4. One bad statement or questionable picture does not mean a person is a bad employee. We all make mistakes and things can be taken out of context as well. You cannot control it if your "friends" post pictures of you from 10 years ago. Don't punish your 30 year old employees for something they did at 18.

For Further Reading

• I'm Sabotaging My Employees Job Searches Through LinkedIn
• I Built a Network, Now How Do I Use It?
• Managers: Stop the Shuffling and Just Fire the Person
• Can You Fire Someone For Wearing the Wrong Tie?

Suzanne Lucas

View all articles by Suzanne Lucas on CBS MoneyWatch»
Suzanne Lucas spent 10 years in corporate human resources, where she hired, fired, managed the numbers and double-checked with the lawyers. Connect with her at LinkedIn, read her blog or send her an email at EvilHRLady@gmail.com.

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