Late last month, we reported on some employment terminations in the health care industry that were prompted by some ill-advised Facebook postings. Earlier this week, Dan Schwartz of the Connecticut Employment Law Blog noted another interesting situation brewing in his home state in the education field -- where a school superintendent faces potential termination of employment for postings to his Facebook page, which only his “friends” could access.
In other words, the discussion was not open to be seen on Facebook by the general public. Apparently, the superintendent engaged in an exchange with his “friends” about his first day on the job, which according to news sources, included sleeping until 10:00 a.m., browsing the Internet, and counseling an employee about either retiring or facing termination. Unfortunately, one of the superintendent’s “friends” apparently forwarded the exchange to the school board, which was none too pleased.
Noting that “[i]t seems that in all of the frenzy over social media, we are losing a bit of perspective,” Schwartz asks a number of valid questions:
Should the fact that someone's Facebook page is set to the highest "privacy" settings make a difference in how we look at issues of employee use of social media?
Are we overreacting to every Facebook post?
What is the real difference between a posting like this and say, an e-mail sent out to friends?
What about the "water cooler" talk?
Is the fact that it is written down somewhere that significant?
As we suggested about a year ago when reporting on the Pietrylo v. Hillstone Restaurant Group lawsuit, each situation must be evaluated on its own merits. While the virtual nature of Facebook posts certainly risks wider distribution than chitchat around the water cooler, employers need to ask themselves whether the employee intended through his or her privacy settings to place appropriate limits on the distribution of the post. Once that context is evaluated, the employer can then take the next step of determining whether the post’s actual content really risks damaging the employer’s substantial interests or violates substantial company policies.
In Pietrylo, you will recall, supervisory employees gained access to a private MySpace account on which employees apparently were saying unflattering things about their bosses. Setting aside for the moment the question of whether the supervisors had authorization to access the site, there likely are few circumstances where an employer would have substantial interests justifying a termination decision when the discussion was restricted to the employees themselves -- discriminatory or harassing comments being a notable exception.
In Connecticut, by contrast, the alleged postings were made by the superintendent of schools -- not by a group of restaurant servers and cooks; the intended distribution, depending on how extensive his list of friends was, had potential to reach members of the local voting public instead of being contained within the workforce; and the content of the discussion was not entirely benign. Where all of this fits in the spectrum between trivial and cataclysmic, I don’t know. But it is important that employers engage in this kind of analysis before pulling the trigger on a termination whenever an employee posts something on a social media site.