In Print: Volume 89: Number 3
Social Networking v. The Employment-at-Will Doctrine: A Potential Defense for Employees Fired for Facebooking, Terminated for Twittering, Booted for Blogging, and Sacked for Social Networking
By Catherine Crane
89 Wash. U. L. Rev. 639 (2012)
(PDF)
Everyone is doing it: Grandma Margaret, Ginkgo the Black Labrador, and even President Obama have all jumped into the social networking craze via Facebook and a host of other social media options now available in cyberspace. With more than 800 million active Facebook users, over half of which visit the site daily, more than 181 million blogs bouncing around the blogosphere, and Twitter being the 15th most visited webpage in the world, the constant barrage of social media-related firings popping up in the news should thus come as little surprise. Moreover, the rate of these high-profile terminations will probably accelerate in the next few years as the original college-aged Facebook users begin their professional lives and enter the workforce. And when you consider that “[y]ounger generations have much less concern about online privacy than older generations,” reflecting a massive societal shift in privacy norms, employer backlash over employee Internet speech is destined to become a permanent landmine in the employment law landscape.
Yet interestingly, the crux of the employee social networking debate lies in the vastly different perceptions held by employers and employees on employee privacy rights. While most business executives assert they have a right to know about all of their employees’ social networking activities, most employees believe their bosses have no right to inquire into their non-work lives. This discrepancy explains why efforts to resolve employee Internet speech issues range from giving employers free reign to fire employees over any Internet speech—the classic employment-at-will doctrine—to claiming an employee has “a right to a life [and a blog] away from work” that should be legally protected through lifestyle discrimination statutes. These and other proposals, however, either privilege the employer’s interests above the employee’s, or vice versa, always leaving one party almost powerless to defend his or her actions against the other. A more nuanced proposal, therefore, would balance the employer’s interest in protecting the image of—and ensuring the smooth functioning of—his or her company with the employee’s interest in reveling in the unprecedented phenomena of social networking and blogging. The fulcrum in this balancing act exists as one, seemingly obvious, factor: privacy settings.
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