Know The Law – Firing an Employee Due to FaceBook Comments – 11/2010

November 29, 2010

Published in the Union Leader

Q:  I own a private gym that specializes in pairing customers with personal trainers.  Someone tipped me off last week that one of my personal trainer employees has been complaining about specific customers on his Facebook page.  He’s also complaining about me.  No doubt this will hurt my business.  Can I fire my employee for this?  What can I do to prevent this in the future?

A:  The simple answer is that you can probably fire the employee for complaining about your customers.  Firing him for complaining about you, however, may be more difficult.

In most states, employees work at will, and so employers can terminate them for no reason or for reasons not prohibited by protective legislation, such as age discrimination, etc.  Here, you have a good reason to fire your employee: he or she is hurting your gym’s good will by complaining about specific customers.  After all, no one wants to work out at a gym where the staff vents their frustrations with customers over the internet. 

In the future, you may want to make it crystal clear to your employees that they are not to talk about customers outside of work, and especially not over the web.  That can be covered in an employee handbook, which each employee must acknowledge governs their behavior while they work for you.  Even better, your handbook should require customer information to be kept confidential even after the employee no longer works for you. 

You may also want to include in the employee handbook a social media and internet policy that would reference the prohibition on talking about customers.  That policy might extend even further so that employees may not disparage the gym over the internet.

But preventing employees from disparaging the gym on-line might not always work.  Why?  Complaining about one’s job is just different.  Employees have a legitimate right to gripe about work after hours.  If other employees can join in on the Facebook page, and if your business earns more than a small amount of revenue, then the complaints may be considered protected concerted activity under the National Labor Relations Act.  It might receive state law protection as well.  You might not be able to fire employees for communicating with each other or the public about working conditions, so long as what they say remains within some boundaries.  Just this month, the National Labor Relations Board brought a charge against an employer for firing an employee who complained about her supervisor on Facebook.

So, you may want to go slow on firing an employee who complains about you on the internet, unless he or she makes egregious statements.  But employees who complain about customers on-line, that should never be acceptable.

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
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