Can I terminate an employee out on disability for comments made about the company on facebook?

Attorney answers (3)

1. Licensed in NY

   

   Herbert J TanPro

   Fort Lee Employment / Labor Attorney

   Contributor Level 17

   

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   Answered January 28, 2011 06:07. Absolutely. However, the employee would argue the fact that such was done based upon her disability.
   
   
   Herbert Tan, Esq.
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2. Licensed in NY

   

   Colin M Page

   Mountain Lakes Employment / Labor Attorney

   Contributor Level 10

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   Answered January 28, 2011 06:11. You should consult with local employment counsel.
   
   I am assuming that the disability coverage is provided by an employer group plan. You may want to provide the facebook posts to the insurer so that it can investigate whether she is in fact disabled and entitled to continued disability benefits.
   
   As for terminating her, it is permissible to terminate an employee for defaming the company. However, if the employee is making statements about working conditions that relate to other employees as well, it is possible that her comments could be considered protected "concerted activity" under the National Labor Relations Act. Also, if the employee is on protected FMLA leave, it is possible that the employee may claim that you retaliated against her for taking leave.
   
   You may want to turn the matter over to the insurance company and have them conduct an investigation. If they find that she was not disabled, you would have a more solid basis for terminating. Or you could terminate now, understanding that there are risks.
   
   Good luck!

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3. Licensed in NY

   

   Arthur H. FormanPro

   Flushing Employment / Labor Attorney

   Contributor Level 15

   

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   Answered January 28, 2011 11:29. I agree with previous posters, that best practice would be to let the WC insurance carrier handle it and not do anything until a determination is made as to her alleged continuing disability. Even after that, I strongly recommend that you consult with a lawyer before deciding how to handle the employee.

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