The rise of social media websites affects many legal spheres, including employment law. Louisiana business owners may not be aware that employment litigation can stem from employer action against online speech.

As employees browse their Facebook pages and ‘Like’ comments, pictures or pages, employers may not agree with the views expressed and, in some extreme situations, fire employees for their actions online. However, in various states, disgruntled employees are challenging their termination for such conduct, and the allegations against employers are raising questions about protected speech in the realm of Facebook and other social networking sites.

The National Labor Relations Board filed complaints against private employers who reacted to employees carrying out actions online. The current debate is whether such online activity is actually protected.

Based on their First Amendment rights, public employees are allowed to file complaints against employers who retaliate against the employees for voicing their thoughts as private citizens. An employee’s right to file retaliation claims stems from his or her employment with the government. However, First Amendment rights are not so clear-cut when the employee speaks out on behalf of his or her government employer.

In a case in which a sheriff fired six employees for ‘liking’ his political rival’s Facebook page, the judge ruled in favor of the sheriff, claiming that ‘liking’ something on Facebook is a generic action — it does not constitute free speech. Even if the action was considered speech, it was not certain that the employees expressed an opinion qualifying for protection because the ‘like’ action is quite vague.

Because the law is developing regarding employment and social media, employers should consider creating social media policies that do not hinder protected speech and do not penalize employees harshly without basis. Louisiana employers with litigation concerns will want to stay abreast of any state and federal court decisions regarding employment and social media.

Source: Employee Benefit News, “When Facebook ‘like’ pushes the wrong button with employers,” Mikal Belicove, May 22, 2012