I have an employee who posted some very negative comments about our company on his Facebook page. Can I take action against this employee based on the Facebook comments?

The rapid growth of the social media, including Facebook, Twitter, LinkedIn, Plaxo, and many more, have raised a lot of issues for employers, including the proper response to the question posed above.

Labor Code Section 96(k) protects an employee engaging in “lawful conduct occurring during nonworking hours away from the employer’s premises.” In addition, all employees have the right to freedom of speech as guaranteed in both the U.S. and California constitutions.

Defamatory Comments

That right, however, is not without limits. It is impermissible to post defamatory comments on social media, and employers can pursue legal remedies when blatantly defamatory comments are posted for everyone to read.

Another example of when an employer can take action is when employees brag about misconduct on their Facebook page, such as calling in sick when they want to go skiing, revealing confidential information about the company, or even posting about spitting in food by a restaurant worker (yes, this was a question the Helpline received!).

The more difficult issue is when an employee posts his/her opinion, which might not be pleasant, but isn’t specifically actionable. An employee can cause awkward, even possibly harassing situations by misuse of social media.

Additional difficult situations result when former employees ask their former bosses to provide references, often on LinkedIn. Supervisors who do so should be aware that such a reference has the force and effect of a written recommendation, and therefore should proceed with caution.

Suggested Guidelines

To help prevent difficult situations, it is advisable for employers to issue guidelines to their employees. Some recommendations include:

  • Prohibit the use of their blogs and posts during business hours.
  • Give notice that misuse of social media may be grounds for disciplinary action, up to and including termination.
  • Ask that employees bring any complaints to the company’s human resources contact versus posting on the Internet.
  • Prohibit employees from revealing the employer’s confidential information or trade secrets on social media.

This list is by no means all inclusive, and it is recommended that employers consult their attorneys to draft appropriate language. Employers cannot ignore social media use, however. They must understand all the issues involved, and then draft policies and procedures to address those concerns accordingly.

The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com. Reprinted with permission from the California Chamber of Commerce, www.calchamber.com. The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. 

P•A•S Associates has expertise in human resources and other areas involving employment issues. P•A•S Associates, in providing this tip, does not represent that it is acting as an attorney or that it is giving any form of legal advice or legal opinion. P•A•S Associates recommends that before making any decision pertaining to human resource issues or employment issues, including the utilization of information contained on this website, the advice of legal counsel to determine the legal ramifications of the use of any such information be


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