Seen any viral videos lately? Maybe a more pertinent question is: Fired anyone over a viral video lately? Videos and other social media posts run the gamut from cute kittens to dancing wedding parties. Sometimes, though, they delve into more serious subjects and become statements on political and social issues — issues that can embarrass an employer.

With all kinds of posts going viral every day, employers struggle with how to handle employee use of social media. The National Labor Relations Board (NLRB) has weighed in on several cases in which employees have used social media to criticize their employers. Depending on the specifics of the posts, their views can be concerted activity protected by the National Labor Relations Act (NLRA).

What if it’s not a low- or mid-level employee but instead a company executive using social media? And what if the posts aren’t even related to the employer? Is an employer on solid legal ground terminating a high-level employee speaking out on social or political issues? Or does the employer face potential legal claims?

Mastering HR Report: Firing

Chick-fil-A controversy
With the recent controversy over statements against gay marriage by Dan T. Cathy, the president and chief operating officer of the Chick-fil-A fast-food chain, the Internet was buzzing. And it looks like at least one executive who took his stance to YouTube was fired over his video showing his trip through a Chick-fil-A drive-thru.

Adam Smith, who was identified in media reports as the CFO for a medical device company based in Tucson, Arizona, videoed himself ordering a free cup of water at a Chick-fil-A drive-thru. When he got to the window, he had an exchange with the drive-thru employee in which he explained that he was ordering the water as a protest. (The free water protest was a move that also had its start in social media. The act was suggested to those opposing Cathy as a way to deprive the company of a little profit that then wouldn’t be available for Cathy to donate to organizations his foes consider hate groups.)

Some reports accused Smith of bullying the employee who is shown in the video explaining that she was staying neutral on the issue and that she didn’t think her personal views belonged in the workplace. He has since apologized to the employee on Inside Edition.

Media reports quote a statement from Smith’s company saying in part, “We respect the right of our employees and all Americans to hold and express their personal opinions, however, we also expect our company officers to behave in a manner commensurate with their position and in a respectful fashion that conveys these values of civility with others.”

Mastering HR Report: Diversity

Risky firing?
In most cases, employers are within the law to fire at-will employees in cases such as the Chick-fil-A protest, although the move may carry some risk. “While government employees have the right to speak out on matters of public concern, at-will employees of private businesses have no such rights and can be fired for any reason, including their political statements on social media or elsewhere,” says Dinita L. James, a partner at Ford & Harrison LLP in Phoenix, Arizona.

“The risk is that the employee will get a good lawyer and will be able to put together a claim that the firing was instead because of some kind of protected status, such as race, sex, age, or religion,” James says.

But good documentation can protect the employer. “Clear, contemporaneous documentation of the reason for the firing will be crucial evidence in the employer’s defense,” James says.

Molly M. DiBianca, an attorney with Young Conaway Stargatt & Taylor, LLP in Wilmington, Delaware, agrees that “it’s always wise to document the reason for any employment-related decision, particularly for terminations and discipline.” She says her rule of thumb is “to articulate how the employee’s off-duty conduct (whether online or not) affects or will potentially affect the employer’s business or operations.”

In the case of the Chick-fil-A video, the fired employee was a company officer. “The company could have legitimate concerns about how his comments will be interpreted as the comments of his employer,” DiBianca says. “Any time you are dealing with a high-level or public-facing employee, there are additional issues that are raised when the employee speaks out in public.”

Social media policy
With social media making it possible for an unknown to become famous within hours of an Internet posting, employers are adopting social media policies for employees to follow.  The NLRB, though, has made it clear that such policies need to be crafted so as not to restrict employees’ rights under the NLRA, such as the right to discuss wages and working conditions with coworkers.

Policy or no policy, employers have to carefully consider how to handle situations based on the facts of each case. “Every employment decision should be considered on a case-by-case basis, but social media policies can serve as a deterrent — or at least prevent an employee who is about to be disciplined for his online posting from claiming surprise,” DiBianca says.

Dinita James is the editor of the Arizona Employment Law Letter. Molly DiBianca is a contributor to the Delaware Employment Law Letter.