Something Negative Was Posted Using Social Media. Now What?

Q. One of our employees posted something very inappropriate regarding one of our managers on their Facebook account. Another person showed this to the manager, who became very upset. Our HR department is telling me I can’t fire this person as it is a freedom of speech issue.  Is this true? What about the manager’s rights and our rights as a company to protect our employees?

This is a very hot topic in the hiring and firing world today. Companies need to be very concerned about things like this happening. Unfortunately, most of the time companies are caught completely off guard when this happens. Yet, given the explosion in social media every company that has employees should be prepared on how they will handle this. Consider starting with some sort of social media policy.

I asked Laura Fleming, a labor attorney and partner with the Newport Beach law firm Stradling Yocca Carlson & Rauth for her advice.

This is a very sensitive issue that depends upon the nature of the Facebook posting.  Under the National Labor Relations Act, all employees — whether or not they are members of a union — have the right to join together and discuss the terms and conditions of their employment.  Thus, employees who complain about management, whether offline or online, may be engaging in protected activity.  Whether a Facebook post is protected depends upon (1) whether the employee is voicing an individual or a collective gripe; and (2) whether the post relates to the terms and conditions of employment, or  is simply an inappropriate personal attack.  Posts which are supported by co-workers, and which relate to the terms and conditions of employment, are likely protected.

Sometimes it can be very difficult to tell the difference between protected and non-protected comments by employees online.  Thus, before taking action against the employee, I recommend that you consult a labor attorney.

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I welcome your thoughts and comments.

Brad Remillard


About the Author

Brad Remillard is a founding Partner of IMPACT Hiring Solutions, co-author of "You're NOT the Person I Hired", and "This is NOT the Position I Accepted". Brad is an award-winning international speaker, retained executive recruiter, and expert on hiring and retaining top talent, and executive job search.


  1. I love the title of the book. I have had so many employees through the years that nothing suprises me any more. Employers need to be more aware of the policies that they have in place regarding use of social media.

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