Can You Fire an Employee for Negative Online Behavior in Michigan?

In Michigan, private employment is considered “at-will,” meaning the job may be terminated at any time for any reason by either the worker or the employer. There are exceptions including discrimination, breach of contract, and public policy (if the termination was caused by an employee reporting illegal actions or safety and health violations, or if the employee was unwilling to commit an illegal action). Employees who take off work for a purpose protected by law, such as jury duty or military service, are also protected by law.

Posting negative comments online about an employer doesn’t seem to fall within one of the categories listed above, so can you legally fire an employee for negative online behavior in Michigan? It depends.

Social media bombshells

Social media bombshells and the backlash they create often make national headlines. Actress Roseanne Barr, for example, lost her job after a Twitter post a few years back. Although the rules governing municipal employees vary from private employers, a local police chief was recently disciplined after tweeting his reaction to protests and riots.

Business owners have every right to protect their brand, and a growing number of employers are keeping a virtual eye on their workers’ online activities. When an employee is on the job, businesses can ban the use of social media. However, according to National Labor Relations Board (NLRB) regulations, employers cannot prevent employees from discussing work-related issues online.

The NLRB and Social Media

A dialogue between workers about the business, including topics such as working conditions, management, and even pay rates is considered “concerted activity,” and is protected by federal labor law.

Section 7 of the NLRB Act guarantees employees “the right to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In 2010, the NLRB began receiving charges in regional offices related to employer social media policies and to specific instances of discipline for Facebook postings. Following investigations, the agency found reasonable cause to believe that some policies and disciplinary actions violated federal labor law. In other cases, investigations found the communications were not protected and disciplinary actions did not violate the Act.

The report underscored two main points regarding the NLRB and social media:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by Federal labor law, such as the discussion of wages or working conditions among employees.
• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Still, laws protecting workers don’t give employees free rein to say whatever they want online. If people aren’t engaging in speech that is protected by law with co-workers, they can be fired for their social media posts.

Social media policies

Business owners should develop social media policies and regularly update and review such policies with workers. Policies regarding account ownership, confidentiality, and employee rights are just a few areas to consider. It is best to work with an attorney when drafting social media policies for the business.

Business owners in need of social media and other policies are encouraged to contact one of O’Reilly Rancilio’s business attorneys at 586-726-1000 or by visiting our website.