(Published May 31, 2010)
People are still learning that what they post on "private" Facebook pages is not as private as they may think. And some are learning it the hard way, after being fired from their jobs because of their posts. The question this raises is less about whether employers can do this and more about whether they should.
A couple of weeks ago, a waitress was fired after venting on Facebook about a couple of her customers. It seems that the couple dined for three hours, forcing the waitress to work an hour past the end of her shift, and then left her a $5 tip. The waitress went home and wrote: "Thanks for eating at Brixx, you cheap piece of **** camper."
Management found out about it and fired her for violating policies on disparaging customers and casting the company in a negative light online. The restaurant posted a statement on its own Facebook page regarding the incident, which generated plenty of responses, most of which sided with the waitress and called for a boycott of the restaurant.
Many of the restaurant's critics mentioned the Constitution, free speech, and privacy rights. The reality is, freedom of speech does not apply in private workplaces; the First Amendment applies to the government. There is no "privacy law" that some seem to think exists to protect everything that anyone says from adverse consequences. Sure, the waitress has the right to say what she did. But the restaurant also has the right not to tolerate it.
Employers generally have employment at-will on their side; plus, Brixx had policies in place that the waitress violated. Even in those states that have laws prohibiting discrimination based on lawful off-duty conduct, conduct that can hurt the company's reputation does not automatically get a free pass. So that covers the can part.
But should Brixx have fired the waitress? In my opinion, I don't think it should have. Unless its policies on disparaging customers and casting the company in a negative light are zero-tolerance, and assuming this is the waitress's first offense, I think it would have been more appropriate to ask her to remove the post; review applicable company policies and examples of violations; warn her that future offenses would warrant disciplinary action; and provide a much-needed lesson on online etiquette.
First lesson being, privacy settings may not be as tight as you think. Second lesson: Not all of your Facebook friends are your friends and are often the ones who disclose private information to the public. Finally, vent all you want, but keep the company's name (and your connection to the company) out of it.
While the waitress may have needed reminders about the reality of online postings, employers also need to be reminded that, just because you can take action, doesn't mean you always should. Differentiate between material that can truly have an adverse effect on the company from material that you simply may not like or agree with. Employers that are heavy-handed when it comes to employees' personal postings — especially ones that were intended to remain private — will hurt morale and retention, and, in some cases, the public image they're trying to protect.
Editor in Chief