Re: Termination of Fred’s Employment Matter
Dear Mr. King,
Thank you for trusting us with this matter. This letter will provide you with a concise and precise legal opinion, issues and analysis that will assist you in making the requisite decision concerning Fred’s termination of employment status. I will provide a brief explanation of the facts, an explanation of the law and provide my informed legal opinion on the matter on issues surrounding Fred’s “protected activity”.
It is my understanding that your company terminated Fred’s employment because of posting defamatory pictures and remarks about you and your company. We have been informed that this included posting pictures of food served during the company’s event and referring to it as “sloppy food”. Additionally, he also took pictures of your grandson’s tragic accident and made innuendo statements such as “grandpa sure is proud now” and “here is how rich kids play”. We are also aware that Fred is a social person and he likes documenting most of his life in social media including and not limited to Facebook.
There are two cardinal issues that will be determined by the courts in this matter. One is whether what Fred posted on Facebook was within the scope of his “protected activities”? Secondly, the court will have to determine whether the termination of his employment was done within the confines of the law?
Ethical and legal arguments regarding the privacy of employees at the workplace are two-fold posing a legal conundrum for the courts. Courts appreciate that employment is a voluntary affair and companies have to exercise some level of supervision and control over their employees. On the other hand, employees take the position that their private lives including interactions on social media should be immune to adverse employment sanctions and monitoring. Case law reveals a similar case in the federal court of New Jersey in 2009. In the case, supervisors monitored private discussions made by employees on a MySpace page which was restricted to employees. The jury found that the employer had violated the privacy of the employees and was fined about $ 17,000.
However, there are a number of nuances between this judicial precedent and your case. While their case involved a password-protected page, Fred posted his pictures and comments on Facebook which is an accessible forum for anyone with a Facebook account. Furthermore, he made defamatory innuendos which were designed to lower your reputation and that of your company in the eyes of the right thinking members of the society. Therefore, in this regard, it is my professional opinion that he exceeded his privacy limits by posting such pictures and comments on Facebook. Your company acted within the law to protect its reputation and that of its leaders.
Additionally, I would also like to articulate a few recommendations. It is advisable that your company settles the matter out of court. We can arrange a meeting with Fred’s advocates where an out-of-court settlement can be canvased. This will protect you and your company against further reputational risks bound by the nature of litigation other than saving on costs. You are also advised to establish a social-media policy within your company that categorically outlines and prohibits inappropriate behavior including internet loafing. Violation of such a policy will constitute a violation of the terms and conditions of employment. The company should train, educate and advise employees to adhere to these policy guidelines
Kindly be advised that this letter and its contents are confidential and should not be copied to other parties.
Borzo, Jeanette. "Employers Tread a Minefield Firings for Alleged Social-Media Infractions Sometimes Backfire on Companies." 21 January 2011. online.wsj.com. 31 October 2013 <http://online.wsj.com/news/articles/SB10001424052748703954004576089850685724570>.
Carlin, Michael. "Employers are Watching Your Facebook: Worker Privacy Significantly Diminished in the Digital Era." 6 June 2011. www.natlawreview.com. 31 October 2013 <http://www.natlawreview.com/article/employers-are-watching-your-facebook-worker-privacy-significantly-diminished-digital-era>.