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Not all employee online musings are ‘protected’

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in Employment Law,HR Management,Human Resources

No doubt you’ve heard about this year’s infamous “Facebook firing” case. The National Labor Relations Board (NLRB) said an employee’s boss-hating rant on Facebook amounted to “protected concerted activity” under the National Labor Relations Act.

Decisions like that make it seem like employees can post anything they want online without any repercussions.

Fortunately, that’s not true. While you shouldn’t punish employees who complain about working conditions (pay, perks, supervisors, etc.), you don’t have to tolerate overt insubordination or workers who violate confidentiality rules.

Recent case: William Harden, the internal affairs investigator at a Maryland detention center, drafted a confidential report concluding that the center’s director had sexually harassed a nurse. Harden presented the report to the county executive, but he concluded the director had done nothing wrong.

Harden then began posting information from the report on his personal blog.

The county suspended Harden for his actions and eliminated his job. It eventually reinstated Harden in a lower-ranking position providing the same pay and benefits.

Harden sued, alleging his reassignment was retaliation for engaging in protected activity. He said that blogging about the report was protected because he was raising the issue of sexual harassment at the detention center.

The court disagreed. It said that posting confidential records was not protected, nor was disseminating documents that an employer could reasonably expect to be confidential. (Harden v. Wicomico County, et al., No. 10-1734, 4th Cir., 2011)

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