Fired on Facebook: What you say CAN hurt you

Clocked in or not, what you say on Facebook or other social media could mean your job.

It did for Ebony Weatherspoon, who was involved in one of several cases over unemployment benefits in which social media was a factor.

Weatherspoon worked as an Internet sales coordinator at Dahl Motors in Davenport. After a Thursday of frustrating systems outages, she was not quite two hours into her shift on Friday morning when she decided to vent. As many do, she turned to Facebook.

'Only 7 ½ more hours of ignorance. TGIF,' she posted from her personal cellphone at about 10:32 a.m., while on an informal break, according to Administrative Law Judge Lynette A.F. Donner's ruling.

A co-worker spotted the comment, reported it to the boss and Weatherspoon was fired in March for 'making a negative post on her personal Facebook page during work hours,' according to Donner's ruling.

Donner decided against Dahl Motors, saying the company failed to prove Weatherspoon's actions were misconduct, noting Dahl Motors was never identified by name, and thus she can receive unemployment benefits.

The firing, however, stands.

Confusion all around

As people become more social media savvy and workplace conversations once held at the water cooler move online for all to see, there are more questions about what is and isn't acceptable, and more confusion for both employers and employees alike.

Would a comment be protected if it were made in a break room? Should an employers oversight include off hours? Can employers ban posts during work hours with the proliferation of personal smartphones?

Is an employer responsible for monitoring workplace-related harassment on social media?

'When is it protected activity and when does it cross the line and become unprotected? It's an emerging area of law, and there's a number of issues that haven't yet been settled,' said Jan Berry, an administrative law judge with Iowa's Public Employment Relations Board, which deals exclusively with public employees.

Francis M. Haas, a lawyer with Nyemaster Goode P.C. of Cedar Rapids, had a similar assessment, noting, 'The law is changing, and the line is pretty blurry.' Elizabeth Overton, an attorney with Sullivan & Ward, P.C., in West Des Moines, said increased social media use is making the issue more prominent.

'It's a newly developing area just because more and more people are becoming savvy with social media,' she said. 'Social media has been around for a long time, but the National Labor Relations Board is expanding its authority more so than it had in the past, and employers are more willing to review what people are posting in social media, so it is becoming more prevalent.'

In another unemployment benefits case, Berta M. Widmann worked as a part-time aide at Westhaven Community: A Ministry of the Evangelical Free Church, in Boone, until being fired in June for electronic comments she made on her day off, according to a ruling from Administrative Law Judge Beth Scheetz.

On Facebook, Widmann made vulgar comments about Westhaven to a former co-worker, who recently had quit, and encouraged the co-worker to consider litigation.

'Yes. If you have proof, talk to a lawyer and sue them!!! You didn't deserve any of it,' Widmann posted on June 21, according to the ruling. 'Immature little (expletive)!!!'

Westhaven said Widmann would have been only reprimanded had she made the comment in the break room.

Again, the judge allowed benefits saying misconduct hadn't been proved.

Inde N. Mitchell was dismissed from her job at Lutheran Home for the Aged, not for what she wrote but because she 'made seven short posts on July 11 while she was working,' according to the case file.

This time, Administrative Law Judge Marlon Mormann sided with the Lutheran Home and denied unemployment benefits stating Mitchell 'wasted time at work posting to Facebook,' which he called 'time theft.'

The three cases show different examples of how people lost their jobs due to social media use and different responses from judges, but the rulings don't necessarily mean the woman have any legal recourse.

Iowa doesn't have specific laws addressing social media in the workplace.

Iowa is an 'at will' state, meaning employees can be fired at any time for any reason or no reason at all, according to Iowa Workforce Development. However, an employee could have grounds for legal action if the firing is based on discrimination, retaliation or whistle-blowing, according to the agency.

Revealing trade secrets or other confidential information or lying about one's company aren't protected.

Haas said she can't comment on whether the Weatherspoon or Widmann cases are lawful terminations, but added that even if Iowa Workforce Development doesn't find misconduct under unemployment law, an employer may still determine the conduct qualifies as misconduct or a violation of company policy.

'In that case, the termination would be lawful under Iowa law under the at-will-employment doctrine,' she said.

She added that none of the cases appear applicable to new federal rules designed to enhance protections for worker communications in social media.

'Protected activity'

The National Labor Relations Board, an independent federal agency that safeguards workers' rights, including the rights of employees to act together, began investigating employers' social media policies and specific discipline cases for Facebook postings in 2010.

The board reviewed 35 cases and found some employer policies and discipline actions violated federal labor laws. The board issued three memos in 2011 and 2012 articulating new standards, including that discussing 'terms and conditions of work' is a 'protected concerted activity.'

The memos state that employer policies can't be so sweeping they prohibit protected activity, such as the 'discussion of wages or working conditions among employees.' But 'mere gripes' about work not connected to a 'group activity among employees' are not protected.

And, there's a caveat — co-workers must comment on the post for it to be considered a 'concerted activity.'

The federal rules are so new that only a couple cases have tested them, and more clarity should come as the board takes on more cases.

'My boss is making me work overtime. I don't like it. It's making me upset. That would be protected,' Haas said. 'But what's less clear is if you posted, 'My boss is a jerk.''

Aliah Wright, author of 'A Necessary Evil: Managing Employee Activity on Facebook, LinkedIn and the Hundreds of Other Social Media Sites,' and staff member at the Society for Human Resource Managers, agreed there's still a lot of gray area.

'If you post something and no one comments, that is what has not been yet tested yet,' she said. 'A lot of these rules have yet to be tested.'

Wright travels the world consulting employers on their social media policies, and for the U.S. companies coaching them on what is and isn't lawful.

'They need to know that two or more employees can discuss terms of employment in a way that is designed to affect change …

in any language they deem fit,' she said.

She said it doesn't matter if they are at water cooler or on social media, and she also questions whether broad rules banning social media during work hours will stand given people have personal cellphones and are allowed break time.

'What is work time?' she said. 'If I am posting something negative between 9 and 5 p.m., how can that be controlled? I don't think time of day makes that much of a difference.'

Wright's advice to employees is don't post anything online you wouldn't want 'your spouse, your neighbor or the CEO of your company to read,' and for employers to confront employees about social media use rather than firing them.

'If have an employee making disparaging comments about the workplace online, don't just fire them, bring them into room and talk to them,' she said. 'They just want to be heard.'

ACT, an educational testing company with about 1,200 employees in Iowa City, is one of many companies that have established social media policies. ACT created its policy in 2012 that explained the role of social media, the differences between personal and professional use and possible disciplinary action.

'ACT expects team members' personal interactions to be professional and grounded in sound judgment no matter the location or communications medium,' ACT spokeswoman Katie Wacker stated. 'Employees are reminded that unlike casual in-person conversations, social media communications may have a permanent nature.'