Contrary to popular belief, employees may be lawfully terminated for comments or pictures that they post on social-networking sites. The law also permits employers to make honest mistakes. An employer who makes the decision to terminate an employee based on an honest, but mistaken belief that the employee violated the employer’s policy, is not a basis for liability.
The same rule applies in the context of social media. Thus, there will be no liability for an employer who lawfully terminates an employee based on online conduct even if it turns out that the conduct did not occur.
Take a recent decision from the Seventh Circuit as an example. In Smizer v. Community Mennonite Early Learning Center, the plaintiff was a teacher’s aide at a church-affiliated daycare center run by his mother. His mother informed the Center’s Board of Directors that the plaintiff had posted “horrible stuff” on his Facebook page and that she no longer felt safe in his presence.
She asked that the plaintiff be fired for “creating a hostile work environment” and then “set about gathering the evidence to dismiss him.” The plaintiff was later fired for “insubordination and unprofessional conduct” based on his alleged Facebook posting. The plaintiff, however, denied writing the post. And the Center never produced a copy of the alleged post.
The plaintiff sued, alleging he was terminated for a variety of discriminatory reasons. His termination was upheld, though, showing yet again that, so long as the termination is not based on unlawfully discriminatory reasons, no liability will attach.
Smizer v. Comm. Mennonite Early Learning Ctr., No. 13-1828 (7th Cir. Oct. 25, 2013) [an enhanced version of this opinion is available to lexis.com subscribers].
Read more Labor and Employment Law insights from Margaret (Molly) DiBianca in the Delaware Employment Law Blog.
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