The Rhode Island Supreme Court recently awarded unemployment benefits to an employee who was fired for posting disparaging comments about his boss on Facebook. Although the worker was already on thin ice due to a host of issues, the employer ultimately fired him after his boss saw the Facebook post. The post was not defamatory or terribly inflammatory, but it was apparently the last straw leading to the employee's termination.

The employee sought unemployment benefits, claiming that his Facebook post was protected free speech. But, he was denied at every level. He appealed to the Rhode Island Supreme Court. The Supreme Court ultimately granted him unemployment benefits, not because the Court believed his Facebook post was appropriate, but because the Court found no meaningful connection between the post and his employment.

Significantly, the employee never named his boss or his employer in his Facebook post. The Supreme Court, however, did not focus very much on the substance of the comments or the reasons the employee made them. Rather, the issued boiled down to one question: was the employee's post sufficiently "connected" to the workplace? The Supreme Court concluded that the post was not sufficiently connected because, among other things, the employee had blocked his boss on Facebook, there was no evidence that any customer or employee saw the post, and the employer failed to show that the post was made on a company device.

Interestingly, the Supreme Court also noted that the employer did not have a social media policy. Although the Supreme Court did not elaborate on the significance of this fact, the Supreme Court effectively put employers on notice that if they do not have a social media policy in place, they will have a harder time disciplining or terminating employees for social media related misconduct. Therefore, employers would be well advised to create a social media and device policy to put their employees on notice of what online conduct is permissible or not.

For more information, contact PLDO Partner Brian J. Lamoureux who focuses his practice on civil litigation, employment law and workplace issues involving social and digital media, and created and teaches an MBA-level course at Providence College called "Digital and Social Media in the Business Environment." Attorney Lamoureux can be reached at 401-824-5100 or [email protected] We welcome your comments, questions and suggestions.

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