Well ... it depends on the topic of the comments and whether the employee is engaging in protected “concerted activity.” If you are like most employers, your first reaction may be immediately to discipline or even terminate the employee. Assuming that your employee is “at will,” you may be within your legal rights to take some action based on Facebook or other social media postings. But, employers have been targets of recent court and National Labor Relations Board (NLRB) cases when they terminated employees who “mouthed off” about their workplace online. Specifically, if an employee is disciplined for inappropriate use of social media, she may have a claim under the National Labor Relationships Act (NLRA) if her social media post addresses terms and conditions of employment.
PRACTICE TIP: When determining whether to discipline and/or terminate an employee based on social media use, review your policy first. Does your handbook clearly provide for prohibitions on inappropriate social media use? If so, then review the message, its context, whether it's protected speech, and make a case-by-case determination.
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