How Not To Get Fired For Facebook Posts: 6 Tips

Fired for social mediaIt was near the one year anniversary of her mother's death, and Amy McClenathan was having a bad day. She posted to Facebook: "I wish I could get fired some days, it would be easier to be at home than to have go to through this." The next day, reports KTVK-TV, she was fired.

"It was a very small sentence," the Phoenix resident told the station, "but it was one of the most powerful sentences I've ever typed in my life"

For the last few years, the National Labor Relations Board, the federal agency tasked with protecting employees' rights to association and union representation, has struggled to define how these rights apply to the virtual realm.

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It is illegal for employers to retaliate against their workers for engaging in "concerted activities for the purpose of collective bargaining or mutual aid or protection." Posting on Facebook about unsafe working conditions, and other co-workers joining in, is therefore protected. But broadcasting how your boss is a psycho, or how the vending machines at your office have stupid snacks, or how you wish you could be fired, probably is not.

Here are six pointers for playing on social media and not getting fired:

If you mock your company, or your boss, make it substantive

If you want to talk smack about your employer, it's best to stick to subjects like wanting a higher salary or better benefits, unsafe conditions, forced overtime, withheld wages, abusive supervisors, retaliation, discrimination, harassment etc.

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A couple years ago, a salesman was fired by the Knauz BMW for remarks made on Facebook: some mocking the meager food selection at a sales event, and others mocking a customer's son for driving a car into a pond. The National Labor Relations Board said the first set of comments were protected, since the event affected his commission. Making fun of a customer's kid, however, was not.

Don't try to be funny

Being funny isn't a defense. Former Arizona Daily Star reporter Brian Pederson (pictured above) was fired in 2010 for tweets making light of a spike in homicides in Tucson. With trademark sarcastic flare, Pederon posted comments like, "WTF! No overnight homicides? You're slacking Tucson." The newspaper fired him, and the National Labor Relations Board said the paper was justified.

Try to get co-workers to join in

It's much easier to claim activity was "concerted," when there are other people involved.

Mention some plan to act

Decades ago, Mushroom Transportation Co. fired a part-time trucker for telling other drivers that they weren't getting "what they were entitled to" with respect to holiday pay and vacations. The Third Circuit concluded that this could only qualify as "concerted activity" if it had the "object of initiating or inducing or preparing for group action..." So when discussing work issues on social media, you should at least hint at a collective plan to do something about it.

Your company cannot tell you not to talk about the company

Many companies have come out with social media policies in the last couple years, but a lot of them uncomfortably infringed on employees' rights. Last September, the National Labor Relations Board found that Costco Wholesale Corp's policy, which banned electronic statements that "damage the Company," fell into that camp.

If you're a public employee, make your speech worthwhile

While private employees don't have total freedom when it comes to their speech, public employees do. But what exactly counts as "protected speech" on social networks isn't completely clear. When a deputy sheriff in Hampton, Va. was fired for "liking" the Facebook page of the sheriff's political rival, he decided to sue. But the judge ruled that a Facebook "like" was "insufficient speech to merit constitutional protection." The deputy vowed to appeal.

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