No, this is not about sexual harassment. “Dooced” is a new slang word that describes terminations related to an employee’s use of internet-related communications. It might involve communicating via weblog, Facebook, MySpace, Twitter, or LinkedIn. When an employee is terminated as a result of such communication, the termination is called a “dooce.”
The term emanated from the employee of a dot-com start-up who created a blog, “dooce.com.” The website was created in 2001. About a year later the employee was terminated for stories she wrote about co-employees.
Employers show differing degrees of tolerance for an employee’s internet-related communications. While some allow an employee some latitude in discussing work-related issues, others take a very strict approach. For example, one employer terminated a 16-year-old employee for a post on Facebook. The post did not divulge trade secrets or personal information. It simply described the degree of boredom accompanying her job of shredding, hole-punching, and scanning paper most of the day.
Other employers use social-networking sites as investigative tools. Based on suspicions about an employee’s need to leave work due to a migraine, one employer created a fictitious Facebook person and “friended” the employee. Once the employer accessed the employee’s Facebook page and confirmed the activity, the employee was terminated. Why? The employee told the employer that rest in a dark room was necessary. The employer decided that employees able to use Facebook with a migraine are able to work with a migraine.
Perils Associated with Employee Discipline for Internet Activity Outside of Work
It will come as no surprise that employee discipline for internet activity outside of the workplace carries risks similar to any other employee discipline. Here are some considerations.
Discrimination. If you are going to discipline an employee for internet-related activity, make certain you are uniform and consistent. Otherwise you open the door for the employee who was disciplined to claim that another employee of a different race, sex, age, without a disability, etc., who was not disciplined, was treated differently based on a protected category.
Retaliation. The U.S. Supreme Court recently expanded the scope of retaliation claims. If an employee is communicating about alleged discrimination, the employer may risk a retaliation claim for discipline associated with that post.
Whistle-Blowing. Does the employee-communication involve a matter of public interest or concern? Does it involve safety or health issues? Is the post about alleged state or federal legal violations? For example, if the employee’s communication concerns conduct that the employee may have a reasonable basis to believe violates federal law or SEC regulations, the Sarbanes-Oxley Act of 2002 is implicated.
First Amendment. If the employer is a public entity, the employee may be able to claim a first amendment violation if the subject is not work-related and involves a matter of public concern.
National Labor Relations Act. Whether or not your employees are subject to a collective bargaining agreement, their internet communications concerning wages, hours, terms and conditions of employment and disciplinary actions are protected. The NLRA provides employees the right to engage in “concerted activity” for their mutual aid and protection. Discussions concerning those subjects constitute “concerted activity.” Employers can discipline employees for posts on company time or through company equipment. But beware about disciplining an employee for internet communications on company-issued equipment, if you allow other non-work-related communications on that equipment.
Privacy Concerns. These cases are fact-intensive. An employee who invites internet communication through one of the social-networking sites would seem to be hard-pressed to allege an invasion of privacy. But depending on the type of communication and the employee’s expectation of privacy, those claims may deserve a trial.
Due Diligence Before Doocing
An employer’s best defense to an employee’s claims related to “doocing” is a complete investigation. And that investigation must occur before finalizing a termination decision. If there is any question about the decision to terminate, the employer should contact legal counsel.
Author: Michael Cork (bio)
Phone: 317.464.1594
email: mcork@bamberger.com
Tags: employment termination, Michael Cork, social networking websites