Employment Law, Oddstuff

Insults on Facebook – allowed?

This of course comes from the US of A, but, given the world’s tendency to sooner or later copy everything which the Americans do or dont do, employers might be well advised to note the lesson in this case.

What has happened?  An employee in Connecticut posted derogatory comments about her employer on Facebook, in fact called her supervisor  a “scumbag” and got fired. Now, this employer, a medical association, had a policy in place  prohibiting employees from disparaging the company or commenting on the company online without permission.  The union, which represented the employee, argues that the policy was too wide as it could potentially also  infringe on an employee’s right to discuss working conditions and that her comments (‘scumbag’) were in fact that, complaints about working conditions.  To make matters even more preposterous, the union claimed that such discussions about working conditions are also protected under the first amendment (free speech).

The parties settled the dispute and the employer has since then amended its policy by making it clear that ” Employees will be allowed to discuss wages, hours, and working conditions with other employees outside of the workplace. ”  One has to keep in mind, of course, that one, unions are much stronger in the US than they are in NZ or OZ and that, two, the matter was settled, not decided by a court or tribunal.  It is very likely, given a string of recent Authority decisions in NZ (see entry of 15 January) that an employer would be justified dismissing an employee for such a comment on facebook as going to the heart of any employment relationship. Even the authors from DaviesWrightTremaine LLP, the US law firm which posted the article,  admit that “a policy prohibiting employees from  denigrating the employer’s product or services on a social media website would likely be enforceable.”

So, nothing to worry about? Yes and No. Workplaces worldwide are getting more and more ‘politcial correct’ in all meanings of the word, and conduct which was previously considered as outrageous might today be a justifiable expression of someones rights under the Bill of Rights Act. Employers should be wary and check with their lawyers how far employees can go under their policies and employment agreements.



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