Q: We have a recently terminated employee who has been posting a lot of social media messages indicating she is going to reveal “secrets” about the company.  She worked in an area that was highly confidential with employee information and company financials. What can we do?

A: This can be a complicated issue and requires employers to draw some distinctions between what is and what is not confidential information. 

First, if you have a non-disclosure agreement, a confidential information agreement, or something similar, you need to look at the terms of that agreement to see what types of enforcement mechanisms you might have. 

Additionally, you can send the former employee a cease-and-desist letter indicating that if they reveal confidential or proprietary information you will seek appropriate remedies. Cease and desist letters can sometimes be very useful, but also know that many recipients simply post the letter on their social media feed, so the letter should be something you are comfortable with and can live with if everyone else reads it. 

The tricky part is deciding what is and is not confidential information. Section 7 of the National Labor Relations Act indicates that employees have the right to discuss, criticize, or just plain insult their employment conditions and their employer’s practices. Certain kinds of things like wage rates, the benefits that are offered, and similar items are all considered to be Section 7 material and you would not normally be able to discipline an employee, or former employee, or stop someone else from commenting. 

However, if you were to have confidential information such as FMLA or ADA data that relates to an individual employee, bank account information, Social Security numbers, marketing plans, the secret formula to your perfect party popcorn mix – anything of that type – it would fall under proprietary and confidential information as well as several other rules and requirements. Therefore, you could potentially obtain a restraining order or something similar to prevent the release of documentation of that type. This is one of those instances where you would clearly need to coordinate with your legal counsel to assess some of the various issues that apply to the use and release of information, even by an ex-employee.