Does It Violate The Law To Fire Someone For Their Facebook Comments?

from the just-might... dept

Michael Scott points us to a discussion highlighting a recent National Labor Relations Board (NLRB) ruling that suggests companies cannot fire employees for things like complaining about their boss on Facebook. The NLRB apparently stated that such complaining about the boss is a "protected concerted activity" under the NLRA. It's been a long time since I was up-to-date on my labor law knowledge (even though I do have a degree in the subject), but this seems like a pretty extreme ruling. If people were fired for actually using Facebook to organize collective action, I could understand it, but it's not really clear that just bitching about your boss really qualifies. That said, it's not clear that it's particularly smart to (a) bitch about your boss on Facebook where they might see it or (b) for a company to react by firing any employee who does that. Neither move makes that much sense. The company definitely seems to be overreacting, but to stretch that to say it's a violation of the law doesn't make much sense.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Rabbit80, Jan 19th, 2011 @ 4:57am

    Having been on the receiving end of some rather unpleasant comments on facebook, I can see where there are situations where a boss may wish to take disciplinary action against employees. For example - if a group of workers form a facebook group and use it to intimidate another employee - this can obviously cause distress for that employee, as well as bring the company into disrepute (Which has been considered to be serious misconduct in every place I have worked for the past 15 years - and can lead to instant dismissal!)

     

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  2.  
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    Bengie, Jan 19th, 2011 @ 5:11am

    Slippery Slope

    If you ware going to bitch about someone, it should be limited to factual information that doesn't contain company secrets and let the reader do the rest.

    EG. Might not be good to just post name calling crap and be like "my boss is a bastard and I hope he dies in a fire"

    Should be more specific with little name calling and be more like "My boss is making me do work well above and beyond what I should be and he refuses to hire on more people. I'm being over worked"

    Facts are not slanderous and as long as they don't have company secrets, well...I'm not sure how a company could fire you unless they have an agreement that lets them fire you for anything.

    I know my warehouse job would let me be fired for anything. They didn't need a reason.

    My current programming job requires a reason.

     

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  3.  
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    Anonymous Coward, Jan 19th, 2011 @ 5:19am

    Just because Facebook has become so popular, it seems that its use in the workplace is being defended more and more. I've even read articles on TD about use of FB actually increasing productivity. But when talking with other employers about the subject, FB is always looked at negatively. We had (notice the tense) one employee who, after we blocked FB, would use proxy sites to access FB. So we blocked a few hundred proxy sites, and still this jerkoff would find really obscure proxies just to be able to use FB. These proxies just look like the type of sites that would be riddled with malware and viruses.

    For a small business in a small community where everybody knows everybody, it is very disconcerting to hear "water cooler talk" about this or that employee posting complaints to FB about work. One one hand we don't want an employee that bashes work on FB, but on the other, we don't want to draw negative attention by firing the employees who do so...

    ...which brings me to my point... The employees who post negative updates about their work to FB are likely less than model employees in the first place. If there is ever a definitive court ruling on the legality of firing based solely on FB use or slander, look for companies to use this as a way to shed unwanted workers.

     

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    wnyght (profile), Jan 19th, 2011 @ 5:26am

    Maybe people should be more careful about what should be in their "private" life vs their "public" life. One should complain about their boss in private. If their Facebook isn't private, then make it private, or don't discuss private matters.

     

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  5. This comment has been flagged by the community. Click here to show it
     
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    Anonymous Coward, Jan 19th, 2011 @ 5:54am

    Last Summer --- Pirates vs pierogi
    (http://content.usatoday.com/communities/dailypitch/post/2010/06/pirates-fire-outspoken-pie rogi/1) ... That one worked out so well for the Pirates....

     

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  6.  
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    Anonymous Coward, Jan 19th, 2011 @ 5:55am

    Another reason to stay off Facebook.

     

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    Chronno S. Trigger (profile), Jan 19th, 2011 @ 5:57am

    Why is everyone defending the boss?

    Everyone bitches about their boss, and everyone knows it, including the boss. Finding out that someone called you a jerk or an asshole is not the end of the world, you don't need to fire them. Just keep your eye on them, if they're becoming a detriment to the office, fire them for that. Keep an eye on yourself, they may call you an asshole for a legitimate reason.

     

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  8.  
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    Anonymous Coward, Jan 19th, 2011 @ 6:22am

    If everything is the media, then posting on facebook is the equivalent of answering a reporters questions on TV or in print. It is a public statement, like it or not.

    If you want to keep something private, use private methods (email, face to face discussion). Posting it in a place where more than one person can see it pretty much makes it public.

    The employee made their own bed on this one.

     

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    Berenerd (profile), Jan 19th, 2011 @ 6:33am

    I know of an issue that could come from this...

    Someone talking about organizing to unionize a shop and a boss coming down hard on that person for saying "I feel my boss is a prime example why the union is needed". I have been on the Unionizer side of stuff like that (before Facebook but on a BBS). Though I would think that other laws cover that.

     

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  10.  
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    Rob, Jan 19th, 2011 @ 6:45am

    "At will"

    If you're employed 'at will,' they don't really need a reason, facebook or not.

    However, to fire someone on the basis of what you read on facebook is probably not a good idea. (Replacing a competent employee is more expensive than keeping them.) At least don't act without some independent confirmation of the legitimacy and accuracy of what you think you've read.

    Also, there's no expectation that what someone posts on facebook is true, so tales of immoral and criminal exploits (e.g.) might just be fiction cooked up to entertain friends.

    For that matter, you might have the wrong guy (or an impostor). You also risk getting information grossly out of context. If someone were to post something to a friend's wall, and they share with "friends of friends," then a friend of the employee (co-worker or boss) might only see a portion of the exchange, distorting the message in who-knows-what kind of way. My father-in-law saw something I posted on a friend's wall, and out of context it appeared that I called his wife ugly and his daughter (my wife) stupid. Since he's an in-law, I haven't done anything to disabuse him of this notion, since it just means I'll be hearing from him less -- whereas with a boss I'd have to explain.

    Letting a good employee go without considering those things would be a Bad Idea(TM).

     

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  11.  
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    Anonymous Coward, Jan 19th, 2011 @ 6:57am

    Re:

    Well there should be a difference between an employee saying "my boss sucks" and a group of employees intimidating or harassing another employee via facebook. Adopting a policy staying that anything dealing with online social networks needs to not interfere with work and that provided things said there wont cause major conflict and disruption of work then no action is needed but should conflict occur then action may be taken by the company to prevent this disruption of work.

    This lets the employee and their boss say what they want outside of work and should it come into work and affect performance or cause other issues then some form of action could be taken. If the boss or employees can't handle what another employee might say about them online maybe they shouldn't friend that person or whatever may be the case. Of course in a case like yours simply not friending someone wouldn't be an option and would have to be handled as an issue like that arose.

     

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  12.  
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    Stuart, Jan 19th, 2011 @ 7:02am

    Re: Why is everyone defending the boss?

    You are so right. Since I can call my Boss a pathetic, power hungry Ass on Facebook obviously that means I can do it to his face and not get fired. Right?

     

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  13.  
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    Michial Thompson, Jan 19th, 2011 @ 7:06am

    A company has a right

    In traditional little mikee fashion he picks a paragraph out of a book and makes a mountain out of it without context.

    JUST bitching about the boss is no big deal, and honestly it's doubtful that that alone would get someone fired. BUT dragging a companies image down with that bitching is more than enough to fire someone.

    ALL companies have unhappy employees, but as a company owner I don't want or need my employees out airing that laundry publicly. I would not hesitate to fire someone for talking about internal issues publicly.

    First off my company deals with a lot of confidential information, having my employees running off at the mouth about work issues only serves to diminish my customer's confidences that the very same employee isn't running off at the mouth about their information too.

    Facts are most states are "At Will Employment" states and no reason is needed for terminating employment, and my guess is that no business would say "you posted such and such so your fired." So back up the claim that they were fired for a facebook post, then back up the claim that it was ONLY about the boss and did not involve company business. Add a little credibility here...

     

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  14.  
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    Rabbit80, Jan 19th, 2011 @ 7:11am

    Re: Re:

    How about comments along the lines of:
    "[Company Name] are crap to work for. [Bosses name] is a perv - he's always groping me..."

    Comments such as those above - especially when unjustified - can cause a lot of problems when made in public, especially if the person making those comments encourages others to do so as well!

    I'm not saying that firing the employee is always the correct action, but on top of other misdemeanours, publicly slandering the company and / or your boss can easily be considered to be gross misconduct and earn a dismissal from the company. I'm not sure too many companies would be overly bothered by a simple "My boss is a wanker" comment!

     

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  15.  
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    Barry, Jan 19th, 2011 @ 7:14am

    I think most people tend to become more liberal with what they're willing to post on Facebook, the longer they use the service. That being said, most people are still in the dark as to exactly how public Facebook is even with their privacy settings. I hear "Only my friends can see it" and it makes me want to cringe. I think of the scene in Wayne's World where everyone keeps telling two friends.

    This might not be news to many people here, but chances are when you have 500+ friends on Facebook you're not actually "friends" with many of them. You also don't know who they know.

    Here's an example:

    Sally is a physician's assistant so she has access to a very large amount of very private information about an extremely varied group of people. Sally has a boss, Dr. Smith who recently took an extended vacation and is making Sally work on her day off to catch up with patients. One patient is crotchety old Mr. Jones with an inverted rectum that Sally has stuff back in... again. now Sally can complain 4 different ways; 1, Sally can have a private conversation with one or more friends in person and say "Damn Dr. Smith is making work over time and it's all nasty stuff." 2, she can be specific and say "Dr. Smith is making me come in on Saturday to push back in Steve Jone's withered rectum again." 3 and 4, she can post 1 or 2 on Facebook.

    I would argue that scenarios 1 and 3 are fine but 1 is definitely less likely to cause trouble due to it's small sampling of "friends." Scenario 2 would always get you fired if someone happened to know the patient and complain. Sally could claim that she was just venting about her boss but she let a little too much info loose. Scenario 4 is almost guaranteed to get back to someone and should definitely be grounds for dismissal. I would fear that with the precedent set that Sally was merely complaining about her boss, there might be more gray area when it comes to the release of private information.

     

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  16.  
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    Anonymous Coward, Jan 19th, 2011 @ 7:20am

    Not sure how you can prove who actually typed in the comments. Could have been the deranged ex-wife?

     

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  17.  
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    Anonymous Coward, Jan 19th, 2011 @ 7:23am

    Don't friend your coworkers. Especially don't friend your boss. Lock that shit down.

     

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  18.  
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    mike allen (profile), Jan 19th, 2011 @ 8:16am

    Frankly I would say whatever I want to both to my bosses face and publicly. I dont care if they sack me I have his name address and a good lawyer.

     

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  19.  
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    wnyght (profile), Jan 19th, 2011 @ 8:48am

    Re:

    So facebook can't be private? If I email all my contacts and with a message that says my boss is a jerk, how is that different than posting to facebook wall where my friends, aka my contacts, can all collectively read it?

    And before you jump on the whole facebook is public, email is private, blah blah blah... my facebook is set to private so only my friends can see.

    Moral of the story here... Facebook is only public if you want it to be.

     

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  20.  
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    MAC, Jan 19th, 2011 @ 9:14am

    Stupidity...

    Would you tell a reporter for say the "Times" that your boss is a jerk, your company sucks and upper management does not know what they are doing?

    Of course not, someone might see it and then you would get fired.

    So, posting the same on Facebook which has an audience hundreds of times larger than the Times makes sense?

    Stupid, stupid, stupid...

     

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  21.  
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    jsf (profile), Jan 19th, 2011 @ 9:44am

    Labor relations law is actually pretty tricky and an employer has to be careful about your work rules, and what they say to or about an employee.

    In this case employees having a discussion about work conditions on Facebook definitely is a protected concerted activity. Labor law and many prior judicial precedents spell this out pretty clearly. It all goes back to the first amendment freedom of speech thing. The method or location of the discussion do not matter. Many businesses do NOT understand this. Particularly non-union employers.

    In this specific case the companies internet policies limit the "location" of protected discussions. To then use this as an excuse to discipline or terminate someone will get you in trouble with the NLRB.

    In a true "at will" situation the smart thing to do is not give a reason for terminating someone. if you can. Union contracts have a big effect on this because you have to give good reason for termination to avoid union backlash. But even in non-union situations companies get themselves into trouble on this all the time because they often want to have a reason for contesting unemployment payments.

     

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  22.  
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    D0M, Jan 19th, 2011 @ 10:29am

    My 2 cents

    If the comment is related to your work place then its work related and can have disciplinary consequences.

    If the comment is a death threat or name calling or defacement of someone then it is unlawful.

    Its simple. Keep your complaints to your self or go through proper chains to file a complaint like your HR department. Making the issue public to the world has consequences. If you can not resolve issues through proper chains then find another job.

    This of course is a 2 way road. Your boss can not deface or threaten you publicly.

     

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  23.  
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    Christopher (profile), Jan 19th, 2011 @ 10:48am

    Not a pretty extreme ruling. Imagine: a boss puts comments that are not from you on your Facebook page or elsewhere by stealing your identity.

    This is this organization trying to head off people being fired for having LEGITIMATE GRIPES WITH and or VENTING about their business at home or online.

    To DOM.... no, it is NOT that simple, to be blunt. File a complaint through your HR department? BWAHAHAHAHAHA! That's even more asking to be fired!

    The fact is that it is time for these companies to realize that if you have unhappy employees.... YOU ARE DOING SOMETHING WRONG!

    Whether you find out about that through a lawsuit or through Facebook doesn't matter!

     

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  24.  
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    Christopher (profile), Jan 19th, 2011 @ 10:51am

    Re: Stupidity...

    Yes, I would. Why? Because it is a PROTECTED FIRST AMENDMENT THING, and many businesses have tried doing what you describe.... and gotten POUNDED IN THE ASS WITH A SPIKED STICK by local laws, forbidding that stuff, unless someone LIES about the work conditions.

    To be blunt, we need less protection of the businesses.... and more of the worker, who has INFINITELY less power than ANY Wal-Mart or Sears.

     

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  25.  
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    Christopher (profile), Jan 19th, 2011 @ 10:53am

    Re: Re: Re:

    How do you know whether those comments are unjustified? And, if they truly are? The business already has a remedy: a slander lawsuit!

    This is an attempt to CHILL FREE SPEECH (Repeat until it sinks in)! I am not going to stand for that, and neither should anyone else.

     

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  26.  
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    Christopher (profile), Jan 19th, 2011 @ 10:56am

    Re:

    Well, that is your fault for blocking Facebook and then blocking the legitimate proxy services. There comes a time where you have to say "Benefit not worth cost!" and this is one time where you should have gotten the message.

     

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  27.  
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    Christopher (profile), Jan 19th, 2011 @ 10:58am

    Re: "At will"

    That is why we have to get rid of that 'employment at will' bullplop and start making businesses give a REASON before they are allowed to fire someone and also have a public organization reviewing these things if the person who was fired wishes that.

    Employment 'at will' allows businesses to treat their employees like SLAVES and terrify them into not asking for things like better wages, better insurance, etc.

     

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  28.  
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    btr1701 (profile), Jan 19th, 2011 @ 6:31pm

    Re:

    > So we blocked a few hundred proxy sites, and still this jerkoff
    > would find really obscure proxies just to be able to use FB.

    Jesus, why didn't he just get an iPhone or something and bypass the company system altogether?

    That's what I do. I don't do Facebook, but my agency blocks about every fourth site on the internet. It's ridiculous. So whenever there's something I want to see, I just pull out the phone and it's there in seconds.

     

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  29.  
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    btr1701 (profile), Jan 19th, 2011 @ 6:36pm

    Re: Re: "At will"

    > making businesses give a REASON before they are allowed to fire
    > someone and also have a public organization reviewing these things

    Oh, baloney. The last thing we need is another panel of government bureaucrats running our lives for us.

    If I want to fire someone, that's my call. It's my business. I'm the one who sweats blood funding it, working my ass off to make it successful, and if there's someone working for me that I don't like, they're gone. As long as I'm not doing it based on their race, religion or gender, then it's none of the government's business why I fired them.

     

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  30.  
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    btr1701 (profile), Jan 19th, 2011 @ 6:40pm

    Re: Re: Stupidity...

    > Because it is a PROTECTED FIRST AMENDMENT THING

    Unless you work for the government, the 1st Amendment has no application to a private company's personnel actions.

    You have no free speech rights vis a vis another private person or entity. Conversely a private company is not bound by the 1st Amendment when it decides whom to hire and fire.

     

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  31.  
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    Any Mouse (profile), Jan 19th, 2011 @ 7:28pm

    Re: A company has a right

    As usual, you start your rant with 'little mikee' making your point irrelevant. We get it, you don't like Mike. Which begs the question: How big a loser are you to spend your time trying to trash a blogger?

     

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  32.  
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    Any Mouse (profile), May 5th, 2011 @ 7:46am

    Re: Re: Re: "At will"

    Except in the cases of filing for unemployment.

     

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  33.  
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    Patricia, Sep 9th, 2011 @ 11:06pm

    firing over facebook?

    So you can't get fired for bitching about your boss, but can you get fired for defacing a coworker on facebook? Like calling them names such as a "f*&(*ng Whore" or a "stupid bitch". What about if they are doing this on another workers profile, sort of a gossipy wat?

     

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  34.  
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    Patricia, Sep 9th, 2011 @ 11:09pm

    firing over facebook?

    So you can't get fired for bitching about your boss, but can you get fired for defacing a coworker on facebook? Like calling them names such as a "f*&(*ng Whore" or a "stupid bitch". What about if they are doing this on another workers profile, sort of a gossipy wat?

     

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  35.  
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    harky112 (profile), Sep 30th, 2011 @ 12:22pm

    Re: firing over facebook?

    I just today got fired because of my facebook status. The owner is my friend on there, but i DID NOT single an individual out and i DID NOT slander the business in anyway. I was venting about a co-worker that had said she was going to cover for me, then changed her mind @ 10:30pm. It was approved by managers... whatever. She lied to not work when really she was partying. ANYWAYS...

    This is what I said... (i was mad)

    "Seriously... Ppl need to get their stories straight. You think I'm an idiot or something? You're NOT that stupid. Fml. Well working a double tmrw! Over joyed!!
    Dear female who said she word work for me in the morning and now can't @ 10:30pm,
    Fuck you and your made up stories
    Sincerely, co-worker that knows your lying"

    The owner seen it and I was fired this morning. Let me also add that I'm not friends with the new girl that works there either. She can't see anything.
    I NEED SOME INPUT!! lol Is that even legal?It's also freedom of speech... right??

     

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  36.  
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    A country based on freedoms, Oct 23rd, 2011 @ 1:00am

    They already control what you can say at the workplace, which is understandable. That's all they need, anymore is a violation to your rights.

     

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  37.  
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    A country based on freedoms, Oct 23rd, 2011 @ 1:08am

    Re: Re: firing over facebook?

    This might be a little late but try and contact the owner and explain that you understand he/she is trying to protect her employees but something said over facebook is not his/her concern and that your position in your workplace should be returned. Also you might try forwarding them the link to this page.

     

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  38.  
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    ARN, Dec 30th, 2011 @ 2:30pm

    Setting an example

    What about Facebook comments regarding drugs/alcohol? Especially if that employee works with kids and isn't doing either (drugs/alcohol) legally. Is it fair to fire her?

     

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  39.  
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    Lori, Feb 24th, 2012 @ 9:44pm

    I did this

    I stupidly posted on my facebook wall that I was frustrated because my company was forcing me to spam people and the technology sucked and some one told my boss but they were forcing me to spam and I have documentation that we were being told to cease and desist and I might have documentation that he told me to go ahead and ignore, but he dead tell me to ignore it and send email to the people who complained anyway and not to stop. And he's mad and I think he might fire me.

     

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  40.  
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    michelle miller (profile), Feb 21st, 2013 @ 6:27am

    husband terminated after a wife made a facebook post

    my husband was escorted off the job like a criminal and terminated by the vice president of a telecommunication company after my facebook post: Pissed off! If people in the office did their job right then we wouldn't have problems!!!! the vp thought to be meant for the company. it was not.he commented back on my post by saying:
    Dean Patesays Really?? You should be grateful not hateful! I don't appreciate your advertising and now all favors for the Millers are gone! Good luck and don't call me looking for a way out again when things get right!
    February 14 at 12:24pm via mobile. he then started sending text messages to my husband telling him to get a handle on me or get out. also telling him he was going to get the dogs on him and that the bashing of his company on facebook was direct disrescept. text messages were sent to myself as well telling me it was my fault my husband was unemployed and how he dont give a fuck about us. so as you read my post and the post made by the vice president of the company I ask you from the soup line what can I or my husband do?
    please keep in mind that 37+ comments were added by others adding to and willing to help fight my husband to secure a promotion.

    February 15 near Boise, ID via mobile
    A word of wisdom for all employees and their families...

    "If you take a shot at the king....you had better kill him"!

    I am still the King and until Wall at says differently, I will rule how I see fit. If you chose to bad mouth my kingdom on FB and other public channels, you will suffer under my crown!

    We work hard to provide opportunity for you to feed your families and direct disrespect will not go unnoticed or unpunished. When you are in the soup line then and only them do you have the right to bad mouth Focus and me personally.

    X....THE KING

     

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  41.  
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    Curiosity killed the cat, Jun 6th, 2013 @ 8:44am

    an e-mail to another via FB

    Can a boss terminate an employee due to co-workers having a beef with one another, and away from the workplace another left (this troubling co-worker, one who is harassing all the others, basically) an email calling her out on this? The co-worker in question said it was done publicly (but that is not the case--if she's the one sharing the info, and it was sent for her eyes only)

     

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  42.  
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    MADasHELL (profile), Nov 14th, 2013 @ 5:26pm

    I was also called into my bosses office today and threatened with termination because of a Facebook post.

    Mind you, I have NEVER had any disciplinary actions against me, I have been a model employee with Excellent annual performance evaluations.

    my personal Facebook page that is set to private, and does not even mention where I work, or what I do for a living.

    I ranted I was tired of this place, and that I was gonna look for a new job, and another post said I was tired of liars and backstabbers and I wanted to find another way to make money besides working for someone else.

    I was called into bosses office and told I was either going to be terminated, or suspended.

    If she suspended me, I was going to have to write an APOLOGY LETTER to my boss and put in my HR file.

    I need legal advice. I didn't mention anyone by name, no employer information was disclosed, and I vented my personal feelings...

    Is it legal for the employer to suspend me for this, or terminate my employment?

     

    reply to this | link to this | view in thread ]


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