Employment at Will: Exceptions and Social Media Cases

Introduction to At-Will Employment

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, p. 3). The employment-at-will doctrine does, however, carry specific exceptions that vary from state to state. The following analysis examines how that doctrine and its exceptions apply to three distinct workplace scenarios under New Jersey law: an employee who posted a rant on his public Facebook page targeting a major client, an employee who blogs critically about her working conditions, and a department secretary who refused to falsify her supervisor's expense reports.

Social Media Posts and Employee Termination

In the case of John, the employee who posted a rant on his Facebook page, there are a number of New Jersey precedents 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).

Similarly, in Ehling v. Monmouth-Ocean Hospital Services Corp., the plaintiff Deborah Ehling brought a suit against her former employer over comments she had made on her private Facebook page, "access to which was limited to her Facebook friends" (McDonnell, 2014). One of Ehling's Facebook friends and coworkers showed the post to her employer. Ehling sued, contending that Monmouth-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). However, "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).

Under federal law, specifically the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) has found that employee discussions of "terms and conditions of employment" are protected under current labor relations law (McDonnell, 2014). Making personal remarks about a company's major client on Facebook would not appear to fall under provisions related to an employee's terms and conditions of employment. Therefore, if John's rant was on his public Facebook page — or was brought to the employer's attention in a similar manner even if originally posted on his private page — John could likely be terminated for his conduct.

This legal action would still be somewhat controversial, particularly if John made the statement on his private Facebook page. New Jersey prohibits potential or current employers from demanding employees' passwords to social media accounts ("Can potential employers ask for my Facebook password?" 2015). Unless the post was public or explicitly delivered to the employer by a fellow employee who was one of John's online friends, it is possible that a court could find John had a reasonable expectation of privacy in the format in which he posted the rant. From a utilitarian ethical perspective, it might be better for the company to advise employees on how to keep their private opinions protected online rather than attempting to monitor them and risk becoming mired in litigation. Even if the company emerged victorious and was able to fire John, the resulting negative publicity might ultimately do the company and its employees more harm than good.

The Public Policy Exception to At-Will Employment

Another major exception to the at-will employment doctrine is the public-policy exception. Under this exception, an employee is wrongfully discharged when the termination is against an explicit, well-established public policy of the state. For example, in New Jersey "an employer cannot terminate an employee for filing a workers' compensation claim after being injured on the job, or for refusing to break the law at the request of the employer" (Muhl, 2001, p. 4). This means the department secretary cannot lawfully be fired for refusing to falsify her supervisor's expense reports. The first use of the public-policy exception under law was Petermann v. International Brotherhood of Teamsters in California, in which Petermann was instructed by his employer to lie while testifying. He refused and was subsequently fired.

The definition of public policy has been somewhat ambiguous in court interpretations; it has generally been held to mean a "tendency to be injurious to the public or against the public good" (Muhl, 2001, p. 5). Being forced to lie under oath is a clear example of a directive that, if obeyed, could be deeply injurious to the public good. In the case of the secretary, the fraudulent expense reports may appear to be less a matter of public policy than of unethical behavior toward the corporation itself. Nevertheless, acting in a potentially illegal and fraudulent manner could have long-term negative implications and possibly result in unintended tax irregularities for the organization as a whole, since employee expenses are presumably reflected in company financial data. The public-policy exception to at-will employment was enacted specifically to ensure a "proper balance between the employer's interest in operating a business efficiently and profitably, the employee's interest in earning a livelihood, and society's interest in seeing its public policies carried out" (Muhl, 2001, p. 6).

Conclusion

From an ethical perspective, firing the secretary for doing the right rather than the wrong thing would be clearly wrong. The company should send a clear message that it supports ethical employees. Across all three scenarios examined, the analysis demonstrates that at-will employment is not unlimited: social media activity, labor-protected speech, and employee refusals to break the law each trigger distinct legal safeguards. Organizations that understand these boundaries — and pair legal compliance with sound ethical policy — are better positioned to avoid litigation, protect their reputations, and foster a workplace culture of integrity.

References

Can potential employers ask for my Facebook password? (2015). Nolo. Retrieved from

McDonnell, S. (2014). Like it or not, employees can say what they want on social media. Philadelphia Technology Review. Retrieved from

Muhl, C. (2001). The employment-at-will doctrine: Three major exceptions. Monthly Labor Review. Retrieved from http://www.bls.gov/opub/mlr/2001/01/art1full.pdf

Zuckerman, E. (2015). Employment law and highly compensated employees. Zuckerman & Fisher. Retrieved from