Employees Post Info Online At Their Own Risk 

(Published February 16, 2009)

 

Would you discipline an employee for posting racist or otherwise offensive material on his Facebook or MySpace page, if it was done on his own time using his own equipment?

 

In the borough of Paramus, NJ, a public worker employed by the Shade Tree and Parks Commission was recently suspended without pay for allegedly posting racist remarks on his Facebook page.

 

On January 19, which was Martin Luther King, Jr. Day, the employee allegedly posted a greeting on his personal Facebook page wishing everyone "a happy James Earl Ray day." (James Earl Ray assassinated King.) The employee's Facebook page also featured a Kentucky Fried Chicken ad superimposed over an image of the White House. A racist slur was also used in referring to President Obama.

 

Although there are no allegations that the employee posted these things using borough equipment or during work hours, the employee identified himself as a borough employee on the website. Following several complaint calls to borough administrators the next morning (Inauguration Day), the employee was suspended pending completion of an investigation by the Bergen County Prosecutors' Office and the Paramus Police Department of whether the posting could be considered a bias crime.

 

The borough attorney will also look into whether the posting violates local workplace discrimination and employee conduct regulations. Borough code reportedly says employees can be fired for "conduct unbecoming of a public employee" or for harassing or discriminating against other employees.

 

The employee reportedly plans to consult an attorney about whether the borough's actions violated his First Amendment right to free speech (which, as a borough employee, he does have).

 

Public vs. Private 

 

Public employers and the military have long used the "conduct unbecoming" standard to keep employees in line even when off-duty.

 

In the private sector, some employers include "morals clauses" in their employment contracts; similar to "conduct unbecoming," it allows them to terminate employees for questionable personal behavior. Important: Employees signing these employment contracts know in advance what types of private behavior may put their jobs at risk.

 

In an at-will employment relationship, however, things get a little cloudier, although, generally, employees post publicly at their own risk. Tip: Let employees know that they are not protected by a right to privacy when blogging or posting on the Internet. Even with a setting that imposes some restrictions on who could view a post (as is common on Facebook and MySpace), there is arguably very little or no reasonable expectation of privacy. And if an employee posts proprietary or confidential company information or defamatory comments, the employer could rightfully sue.

 

In all fairness, however, employers should only fire employees for an off-duty, legal activity if:

• the activity harms the employer's reputation or product;
• the activity renders the employee unable to work or appear at work; or
• the activity makes the employee's co-workers reluctant to work with him.

Alert: 

• Some states have laws prohibiting employers from disciplining employees for lawful, off-duty conduct.
• An employee's online postings may be considered protected concerted activity under the National Labor Relations Act (NLRA) if they discuss wages or other terms and conditions of employment.

Best practice: Before taking any disciplinary action against an employee for their off-duty online activity, check with legal counsel.

 

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