"FACEBOOK FIRED:" EDUCATING STUDENTS

ABOUT THE PROFESSIONAL AND

LEGAL IMPLICATIONS OF PERSONAL SOCIAL

MEDIA USE ON EMPLOYMENT STATUSKimberly O’Connor, J.D

Gordon Schmidt, PhD., Indiana University Purdue University Fort Wayne

Social Media• Sites that allow you to share user generated

content with others

• How many of you have a Facebook account?

• Do you set your privacy settings?

Social Media and Work

• Do you think your employer should be able to look at your social media posts?

• Do You think that First Amendment Freedom of Speech protects all forms of speech, including what is posted online?

• Social Media usage can have impact on people’s jobs

• A number of firings and disciplining of workers based on worker’s posts

Law and Social Media Terminations• With the widespread use of social media we are

seeing an increasing number of people fired for social media posts

• This can lead to legal cases in the courts and NLRB of appropriateness of such actions

• We will discuss some of the major results so far• One important aspect is the job classification of

a worker

Exercise• We will now look at example situations based upon

actual cases that courts or the NLRB have ruled on

• Looking at the example answer the question:– Can a person be legally fired for this behavior?

• Have you seen an employment-related social media post by one of your connections in the past?

EmployeeClassifications

• At – Will - An employee whose employment is for an indefinite duration and can be hired or fired at the employer’s discretion. Also known as a private sector employee.

• Union – A worker whose wages, hours, and working conditions are negotiated through a collective bargaining agreement.

• Public Employees – A person who is employed in the public sector and whose work is controlled by governmental bodies, whether at the federal, state, or local level.

National Labor Relations Act – “NLRA” Section 7 of the NLRA gives employees the right to engage in “concerted activities” for their “mutual aid and protection”

“Protected Concerted Activity” includes two or more employees acting together to address a collective employee concern about work terms or conditions.

Employers cannot take action to restrain such activity.

NLRA Applies To At-Will and Union Employees’ Use of Social Media

DESIGN TECHNOLOGY GROUP, LLC, 359 NLRB NO. 96 (APRIL 19, 2013): THE NLRB FOUND THAT EMPLOYEES’ FACEBOOK COMPLAINTS CONCERNING SUPERVISOR’S TREATMENT OF EMPLOYEES AND SAFETY CONCERNS WERE PROTECTED CONCERTED ACTIVITY.

• BMW Dealership held a sales event to introduce a new BMW design.

• A salesman posted negative comments, along with pictures of the event.

• Also, the salesman posted pictures and comments about an accident at a Land Rover dealership also owned by the BMW Dealership.

• NLRB held that the Land Rover posts were not “protected concerted activity” and by themselves enough to affirm the termination.

•

Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sep. 28, 2012).

Public Employees and Free Speech

• The First Amendment states that Congress shall make no law….abridging the freedom of speech

• For Public Employees First Amendment rights exist for matters of “Public Concern” only

PUBLIC EMPLOYEES: K-12 PUBLIC SCHOOL TEACHERS

Payne v. Barrow County School District: (2009).

• Georgia High School English Teacher, Ashley Payne, posted pictures of her summertime European vacation on her Facebook page. She also posted a status update with the word

“BIT_ _ES.”

• Payne had her privacy settings set to “Private.” She had no students as FB “Friends.”

• A Parent complained. The school corporation gave her the ultimatum, resign or be fired. Payne resigned and then filed suit.

• GA court held that her contract was up by the time she had her day in court. Case was moot.

• Do you think this outcome was fair?

• How should your students consider these issues?

Snyder v. Millersville University, (2008 Pa. Dist. Ct.)

• Student Teacher Stacy Snyder was in her last semester of college at Millersville University in PA

• She was assigned to student teach High School English. She was warned not to share social media with her students

• Snyder had a MySpace page and told her students about it. They accessed the page and found pictures like her “Drunken Pirate” picture

• Millersville refused to give her a degree in Education. She instead received a degree in English

Organizations and Social Media Policies• 57 % of organizations have social media policies• NLRB rulings suggest appropriate legal language

for such policies – Language must not restrict employees’ right to

speak to one another about terms and conditions of their employment

– Social Media policies should give employees examples of what an organization deems to be inappropriate online speech (e.g. employees should not divulge trade secrets online)

• Understand What Type of Employee You Are and What Laws May or May Not Apply.

1

• Know Your Employer’s Social Media Policy and Follow It!

2

• Set Your Privacy Settings Be Cautious About What You Post, Even On Blogs and Other’s Pages.

3

What Can You Do To Protect Yourself?

Debrief: What have we learned?• Where you might use this in a class– Lectures related to legal issues of employment– Lectures related to social media policies, HR policies,

and employment decisions– Discussions related to careers and career

preparation• Where do you think this might fit in the classes

you teach?• What have you gained from this session?

Discussion• What are your thoughts?

• Other ideas on activities for this topic?

Feel Free to Ask Questions Later

• Kimberly O’Connor• oconnork@ipfw.edu

• Gordon B. Schmidtschmidtg@ipfw.edu https://twitter.com/iopsychology

• Presentation is on Slideshare