The Blogosphere: Can You Terminate Employees for Personal Postings?

By: Beth Slagle

We are a society that values reputation. Thus, the candid and bare-all web frenzy captivating millions through Facebook, twitter, pininterest and personal blogs can create problems in the workplace. So, what’s an employer to do when the personal and intimate Internet postings of an employee cause harm to the employer’s reputation – can the employer fire an employee for off-site, off-duty activities? As is so often the case, the answer is … it depends.

Public sector employees and those covered by collective bargaining agreements, typically, can only be fired “for cause,” while most other employees are “at-will;” and, generally speaking, can be fired at any time for any reason. Consequently, public sector employees have more protection than private employees because the First Amendment to the U.S. Constitution entitles public employees to voice their concerns about matters of public interest. For example, if a public-sector employee was terminated for blogging about government wastefulness or inefficiency, then the employee may have a basis for challenging the termination on First Amendment grounds. In such a case, the court would weigh the employer’s interest in providing its services against the employee’s interest as a citizen in raising a matter of public concern. The case becomes much less clear, however, when it involves an employee posting personal thoughts as opposed to matters of public concern.

But what about all the at-will private sector employees who don’t have the same type of protection as public employees? Theoretically, any off-duty, off-site, legal activity should have no impact on an employee’s job. But, in reality that’s not always the case, especially where an employer’s reputation is maligned or called into question in some way. One of the more notable cases involved a Delta Air Lines flight attendant, Ellen Simonetti, who was fired because of her “Queen of the Sky” blog content in which she posted provocative pictures of herself in a Delta uniform on a Delta plane. Delta discharged her for posting inappropriate photographs of herself in uniform. She sued. While the case has yet to be resolved due to Delta’s bankruptcy, Ms. Simonetti’s termination and lawsuit is a case in point that the boundaries and law are not so clear on an employer’s right to discharge an employee for non-working hour activities.

One thing we can be certain of is that an employer’s power to discipline or terminate an employee for their private Internet postings is not absolute. Because the whole Internet, facebook, blogosphere world has not remotely reached its peak yet. There is a dearth of case law dealing with the ramifications of private Internet postings. Social networking, privacy-related concerns will continue to evolve. One way that some companies have attempted to balance legitimate business interests compared to an employee’s competing interest to freely communicate is to provide guidelines and policies for employees’ online activities off-duty and off-site. Establishing parameters for employee Internet networking (on-site and off-site) may be the best solution for avoiding problems with those employees who discuss their employment or identify their employer. However, it is critical that the employers be cautious that any policy implemented not be interpreted as impeding an employee’s protected rights. For more information about Employer/Employee rights and responsibilities, please contact Beth Slagle, Meyer, Unkovic & Scott LLP at 412.456.2890 or bas@muslaw.com.

Beth Slagle , Attorney at Meyer, Unkovic & Scott, wannabe and sometimes entrepreneur and Founder & CEO of BizChicks.