Labor: Avoiding a viral termination

Sometimes the news of an employee’s termination based on social media can be more damaging to your company than the social media post itself

“Dooce—To get fired from your job because you post about your job on the Internet.”

Urban Dictionary

With the proliferation of the Internet in our daily lives, it is not difficult to find a story about someone fired from his or her job for something posted on Facebook, Twitter or a blog. Heather Armstrong—the full-time author of Dooce.com—might have been the first.

Before Heather Armstrong became a professional blogger, she was working as a web designer for an anonymous company in Los Angeles. During her tenure, she launched Dooce.com, where she wrote anonymously about her unnamed workplace and its nameless co-workers. For example, she trashed-talked her bosses, quoted a co-worker asking for marijuana at the office holiday party, and recounted how she would sneak out of work early.

In February 2002, after an anonymous co-worker emailed the vice presidents of her employer and blew the whistle on Dooce.com, the company fired Armstrong because of her blog.

From this ordeal, Armstrong drew the following lesson:

“My advice to you is BE YE NOT SO STUPID. Never write about work on the internet unless your boss knows and sanctions the fact that YOU ARE WRITING ABOUT WORK ON THE INTERNET.”

In the 11 years since Ms. Armstrong’s termination, employees have not heeded her prescient advice. In the last month alone, three separate examples of companies “doocing” employees have permeated the headlines.

  • Seattle’s All City Coffee fired a barista after it discovered his Bitter Barista website, on which he reposted his sarcastic tweets about customers and his bosses
  • A St. Louis Applebee’s terminated an employee who posted on Reddit a photo of a customer’s bill, on which the customer had crossed out the pre-determined 18 percent tip, and wrote, “I give God 10%. Why do you get 18?”
  • An Atlanta pediatric clinic fired a nurse who posted on her personal Facebook page her frustration with her inability to obtain an appointment for her sick child at her own clinic.

None of these terminations would have been newsworthy, except for the fact that they involved employees’ posts on social media sites, which went viral only after the employer terminated the employee and sensationalized the story.

So, how do you avoid an employee’s Internet posts about work from going viral?

  1. Not every social media or Internet gaffe is termination-worthy. Often the harm to your company’s reputation from a viral termination far outweighs any harm that the employee could cause by taking an employment issue or gripe online in the first place. Instead of thinking about the incident as a basis for termination, consider it as a teaching moment for the offending employee. If you take the employee aside and coach them on the proper use of social media when discussing workplace issues, you will likely stop the employee from offending again, while, at the same time, establishing a trail of documentation in the event the employee does not learn his or her lesson and recidivates.
  2. If an employee’s social media posts invoke certain key issues—like privacy or confidentiality—then you have to act. For example, if a medical professional violates the Health Insurance Portability and Accountability Act by posting protected patient information, or if an employee breaches confidences by disclosing trade secrets, then you need to take the risk of a potential viral hit and take swift and decisive action against the offending employee. The harm of not acting in these cases will far outweigh any harm to your corporate reputation if the termination goes viral.
  3. If the employee is griping to and with coworkers about terms and conditions of employment, you are probably in National Labor Relations Board (NLRB) territory, and any discipline or termination would be risky in light of the NLRB’s forays into litigating social media terminations under the umbrella of “protected concerted activity.” If an employee is talking about terms and conditions, take a deep breath, count to ten, and run to your outside counsel as quickly as possible for a gut-check on the legality of any action under federal labor laws, if you are inclined to act.

With the mere click of a keyboard and scroll of a mouse, social media can turn a private, intra-company personnel matter into a public, viral PR nightmare. For this reason, employers need to understand these viral risks and consider them in every employment decision. Otherwise, companies unwittingly risk their public image via the social media airing of what should be a private personnel matter.

Contributing Author

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Jon Hyman

Jon Hyman is a partner in the Labor & Employment and Litigation groups at Cleveland law firm Kohrman Jackson & Krantz, a Meritas member firm....

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