We have commented before about Facebook and the concern that certain employees may be posting comments about co-workers or their boss in violation of employer policies. Of course, if the employee is unaware of a policy against cell phone usage during work, or Facebook postings, then they cannot be disciplined for violating an unknown and undistributed policy.

On the other hand, if you have been warned and specifically shown a policy at work, then termination or discipline is possible depending on whether the policy calls for termination or merely discipline. Some employers use a Facebook comment as a pretext for firing workers who otherwise had complained about bad management practices. Each case will turn on its facts, so just be aware that the comments you make on your cell phone or computer are potentially going to be used against you by your employer. Employers should also be aware that undistributed policies or seat of the pants decisions do not count as a proper basis for termination or discipline. Employees cannot be expected to be mind readers.