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Social media and the Delaware workplace: What are your rights?

Perhaps you are like millions of other people and rely on social networking sites, such as Facebook and Twitter, to meet new people, stay in touch with family and friends and perhaps support your favorite photographer or author. You may even use social media sites to promote your political beliefs, voice concern about policies in Delaware and share your expertise or display your talent for singing or comedy.

Likely, you also use social networking to chat with your co-workers but what you may not know, or understand, is that using social sites to vent your frustration or complain about your pay, may get you in trouble with work.

Constructive criticism

There appears to be a fine line defining what a person can say about their job or employer on social sites. According to the National Labor Relations Board, it's okay to make complaints as long as you are pointing out concerns over something that also affects co-workers.

For example, The New York Times related the story of five co-workers who were illegally fired for talking about their workloads with each other on social media. NLRB sided with the workers because they were talking with each other about their work situation as a collective group. Examples of constructive criticism include but are limited to:

  • Employee treatment
  • Wage issues
  • Workloads
  • Unsafe working environment

Personal venting

Using social media as a way to complain of unfair treatment, criticize managers or post inappropriate messages could be construed as personal venting, which is not condoned by the NLRB.

In the same New York Times piece, the NLRB found that an employer was within their legal rights to fire a bartender who insulted customers on social media. Such rants are not protected and using your social page as a way to attack co-workers, management, or customers could result in you losing your job.

Termination over social media posts

Many companies attempt to control what their employees can say about them through their social media sites and have policies in place that are not always clear. This can result in you receiving a termination notice for posting something about the company that they feel is derogatory or critical.

However, if you are fired for a social media comment, you may be able to claim that you are a victim of wrongful termination. An experienced attorney in employment law can determine whether you were within your rights as an employee. If you prove your case, you may be reinstated in your former job and may be awarded compensation for the income you lost.

View Cases

  • Sheridan v. E. I. DuPont de Nemours & Co., 100 F.3d 1061 (3rd Cir. 1996) (en banc) (Plaintiff's jury verdict and the "pretext only" paradigm for proof of intentional discrimination established).
  • Hawkins v. Division of State Police, et al., C.A. No. 99-297-SLR (Religious discrimination case which successfully obtained an offer of judgment and caused the State to stop using the MMPI-1.
  • Miller v. Daimler Chrysler Corp., C. A. No. 01-827-JJF (D.Del. 2003) (Race Discrimination claim survived Motion for Summary Judgment).
  • Panaro v. J.C. Penny, Inc., C.A. 01C-02-010 JOH, 2002 WL 130692 (Del. Super. 2002)(In a personal injury case, admission into evidence of direct examination of deceased deponent/plaintiff does not.
  • Price, et al. v. L. Aaron Chaffinch, et al., C.A. No. 04-956-GMS, 2006 WL 1313178 (D.Del. 2006) (First Amendment Retaliation, Petitions Clause and Defamation Claims survived Motion for Summary Judgment).
  • Reyes v. Freebery, 141 Fed. Appx. 49 (3d Cir. 2005) (per curiam) remanding to District Court to explain its restrictions on the public's right to access to judicial records and counsel's First Amendment.
  • Underwood v. Sear Roebuck and Co., 343 F.Supp.2d 259 (D.Del. 2004) (Gender discrimination claim survived Motion for Summary Judgment).
  • Shotzberger v. State of Delaware Dept. Of Correction, 2004 WL 758354 (D.Del. Jan. 30, 2004) (Gender discrimination claim survived Motion for Summary Judgement).
  • Stull v. Thomas S. Neuberger, P.A., 2003 WL 21481016 (Del. Super. Febr. 28, 2003) (Effect of Delaware accord and satisfaction law on a contract for legal services).
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