Employment at Will Policy: Exceptions to the Rule
The notion of 'at will' employment reflects the fact that by law employees can be fired from any job for any cause, good or bad, depending on the whim of the employer, barring a written employment contract (Muhl 2001:3). There are specific exceptions to this policy which vary from state to state. But in the case of John, the employee who posted a rant on his Facebook page, there are a number of NJ state precedents of allowing employers to fire employees for posts made on social media. A garbage collector in Maplewood, N.J. was fired for complaining on his public Facebook page about having to clean up "after a two-day concert, blaming the mess on liberals who rant about green living and then pollute the parks, and launched a tirade against Obama, gays and liberal politics" (McDonnell 2014).
Also, in the case of Ehling v. Monmounth-Ocean Hospital Services Corp. The plaintiff Deborah Ehling brought a suit against her former employer for her comments on her private Facebook page, "access to which was limited to her Facebook friends" (McDonnell 2014). One of Ehling's Facebook friends and coworkers (obviously a loose use of the word 'friend') showed the post to her employer. "Ehling sued, contending Monmounth-Ocean Hospital Services Corp.'s access to the page violated the Federal Stored Communications Act (SCA) as it applied to social media. The SCA is part of the Electronic Communications Act of 1986, which protects private communications transmitted and stored electronically" (McDonnell 2014). But "the District Court held in favor of the employer, finding Ehling's co-worker was an intended recipient and that his authorization to the employer to view his page was sufficient" (McDonnell 2014).
However, under the federal laws such as the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has found discussions of employee "terms and conditions of employment" to be protected under current labor relations law (McDonnell 2014). Making personal remarks about a company's major client on Facebook would not seem to fall under provisions related to John's terms and conditions of employment and if his rant was on his public Facebook...
New Jersey prohibits potential or current employers from demanding employee's passwords to social media ("Can potential employers ask for my Facebook password," 2015). So unless the post was public or explicitly delivered to the employer by a fellow employee that was one of John's friends online, it is possible that it could be found that John had an expectation of privacy in the format in which he posted the rant. In such instances, from a utilitarian ethical perspective it might be better for the company to suggest to employees how to keep their private opinions protected online, versus attempting to 'snoop' on them and mire itself in a potential legal quagmire. Even if it emerged victorious and was able to fire John, the bad publicity for the company might not be worth the battle and ultimately do the company and its employees more harm than good.
On the other hand, even though it was posted in a public format, Ellen's complaints in her blog would almost certainly be protected under law. Ellen is specifically complaining about the "terms and conditions of her employment" and even if her comments are rude and nasty, they are protected under the National Labor Relations Act (NLRA) so long as they solely relate to her own, personal employment (McDonnell 2014). Firing Ellen could result in a lawsuit for the organization; thus, the organization should at least attempt to address Ellen's concerns through mediation vs. attempting to threaten her into shutting down her blog or forcing her to leave the organization. The only ambiguity under NJ law is whether complaining on social media constitutes a sufficient claim of disagreement as delineated in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980) which found that "the employee must express disagreement with a corporate policy, directive or decision based on a clear mandate of public policy" and that it is "a sufficient expression of that disagreement to…
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