The Arkansas Court of Appeals ruled in December that a woman who was fired for posting “arguably” critical comments about her employer on Facebook could receive unemployment benefits. It’s the latest decision in an escalating legal war between employment and social media.
“Given the rapid proliferation of social media, navigating through social media-related employment issues can be uncharted territory for employers,” Jane Kim, a partner at the law firm of Wright Lindsey & Jennings LLP in Little Rock, said in an email in response to questions from Arkansas Business.
David L. Hudson Jr., a law professor who teaches First Amendment and employment law at Vanderbilt Law School and the Nashville School of Law, said he’s seeing a rise in the number of lawsuits involving employers and what their employees post on social media.
“It’s one of the most burgeoning issues in First Amendment law,” he said. “I think there are some clear lines, but it’s still a developing area of law.”
In the Court of Appeals case, Arkansas Department of Workforce Services denied unemployment benefits to Ana Martinez because she was fired for misconduct last March from Yours Truly Consignment Shoppe in Conway. Martinez appealed the denial of benefits, and the case eventually made it to the Court of Appeals.
The Court of Appeals, in a decision written by Judge Brandon J. Harrison, found that Martinez didn’t “engage in misconduct” when she liked a Facebook status of a former co-worker who posted: “Just got fired with no explanation. : ) but I’ve hated working at yourstruly (sic) for a long time now.” The employee said she would miss a couple of co-workers, including Martinez.
Martinez, while she was on her lunch break, also commented on the post: “She did both of y’all wrong,” referring to a second fired employee.
Cinda Montgomery, the store’s owner and general manager, saw the post and fired Martinez the next day. Martinez represented herself in the court proceedings. The Court of Appeals agreed that Martinez could be fired for off-duty conduct involving the posts but found that the posts didn’t rise to the level of misconduct that would cause her to lose her unemployment benefits.
Hudson, the Tennessee law professor, was pleased with the ruling when he learned of it from Arkansas Business.
“Employees want to have off-duty rights of expression,” he said. “We don’t want government reading through all our Facebook messages all the time.”
Employee Facebook Conduct
Before an employer decides to fire an employee for something posted on social media, the company should have policies in place regarding such posts, said David Urban, an attorney at Liebert Cassidy Whitmore of Los Angeles, which handles labor and employment law. And those policies have to comply with the National Labor Relations Act, if the employee works for a private company, and with First Amendment standards, if the employee works for the government.
“And actually that’s just the beginning,” Urban said. “It gets complicated because there are state laws that protect free expression in many states as well.”
Kim, of Wright Lindsey, said that in general, an employer can prohibit employees from social media activity “that could be characterized as unlawfully harassing or discriminatory, threatening, coercing, or intimidating.” Employers also could prevent employees from posting confidential information or information that violates intellectual property laws.
Hudson said employees who have morality clauses in their contracts have to be “extra careful on what you post online.” A government worker who works frequently with the public “can’t be making comments denigrating part of the population or something,” he said.
Employees on social media have protections from their employers.
In Arkansas, employers can’t require an applicant or employee to disclose usernames and passwords, add co-workers as contacts or change an account’s privacy settings, Kim said.
Applicants and employees have rights to privacy and autonomy outside of work, she said. Employers who violate those rights could face liability. “Ultimately, employers should generally avoid any involvement in the social media lives of prospective and current employees due to the inherent risk of learning personal information (disability, religion, etc.) that employers simply do not need to know about their employees,” Kim said.