It only takes one impulsive online post or a damaging tweet from an employee to inflict serious harm on a business or its employees. With increasing frequency, we see news reports about private and public employees creating havoc in the workplace due to an employee’s offensive or scandalous social media post. When it happens, companies often have to act quickly and make difficult employment and business decisions to maintain their reputation and manage the fallout. A “prime-time” example of this is ABC’s recent firing of Roseanne Barr and cancellation of the network giant’s hit show after Barr’s offensive tweet regarding a former government official.
While social media certainly has marketing benefits, there are many people who use it to insult or harm others or to air their grievances. With such easy access to social media, any employee can cause harm to a business at any time. So, what can employers do to proactively manage their employees’ social media activity, both on and off-the-clock? The following do’s and don’ts provide some guidance on the issue:
1. Do: Implement a written social media policy
Your company should have a clearly-worded social media policy to limit exposure to costly legal problems. An effective policy will educate employees on the company’s restrictions concerning social media activity, provide best practices, and establish disciplinary measures that can be expected for policy violations. All employees should be given a copy of the policy to review and be required to sign an acknowledgment form indicating their understanding of the policy. Employers should enforce the policy consistently on a company-wide basis to avoid claims of discrimination.
2. Don’t: Restrict employees’ rights to discuss wages and other working conditions.
Employment policies cannot be so broad that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. Section 7 of the National Labor Relations Act (“Act”) is a federal law that protects the rights of employees to act together to address conditions at work, regardless of any union affiliation. This protection extends to certain work-related discussions held by and between employees over social media, such as Facebook and Twitter. The National Labor Relations Board (“NLRB”) is the federal government agency responsible for enforcing this law. Broadly worded social media policies, which can be interpreted to prohibit employee activity protected by the Act, are unlawful and can ultimately result in monetary and other penalties imposed by the NLRB against employers.
In particular, the NLRB has found unlawful certain ambiguous and subjective terms used in social media policies like those that prohibit “inappropriate conversations,” “unprofessional communications,” or the disclosure of company “confidential information.” Instead, policies should include descriptive language, definitions and examples of inappropriate or prohibited social media. To avoid violating the Act, employers should consult with legal counsel to develop appropriate and lawful language for the company’s social media policy.
Employers must also ensure that their disciplinary actions following an employee’s social media post(s) do not violate the Act. A Popeyes Louisiana Kitchen restaurant in Detroit may soon be in hot water with the NLRB and other government agencies after a manager recently fired an employee who livestreamed cellphone video on Facebook showing unsanitary work conditions in the food storage and preparation areas. Depending on the facts surrounding the employer’s actions, the termination may ultimately be found to have violated the employee’s rights.
3. Do: Educate employees about potential harms/risk of social media
While employees are generally free to express their views on their own time via social media, employees should still be informed that that their personal posts, tweets, or blogs could result in disciplinary action at work if their personal posts appear to be linked with the company or violate the rights of the company or its employees.
Here are a few recent reports of employees being fired for the content of their personal social media posts:
• The Allegheny Health Network in Pennsylvania recently fired an employee after her callous and racially-charged Facebook post thanking local police for shooting and killing an unarmed 17-year old suspect during a traffic stop.
• Facebook terminated an employee accused of bragging on matchmaking app Tinder about his work access to private user information.
• A South Carolina pet store manager was reportedly fired over a social media post in which she pledged to “punch” the next female (and her baby) who breastfeeds in front of her kids.
Employees must be reminded that their off-duty social media activity may reflect poorly on the business and ultimately impact their job.
4. Don’t: Allow employees to post content regarding co-workers that could be regarded as threatening, harassing, or discriminatory.
In evaluating one company’s social media policy, the NLRB found lawful a provision providing that “any harassment, bullying, discrimination or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.” Accordingly, a company’s anti-harassment/discrimination policy can extend beyond the workplace when dealing with social media use.
5. Do: Prohibit employees from using company equipment and resources to post personal content or from doing so on company time.
Company policies should inform employees that computers and other company equipment should only be used for business purposes, and that there is no expectation of privacy when using such equipment. Employees should also be made aware that the company has the right to monitor and review all use of company-owned equipment without the employee’s notice or consent, including their social media activity. This information may help deter certain non-work-related conduct by employees while using company equipment, and to justify disciplinary measures when necessary.
Being prepared in the event of an employee’s damaging social media post cannot be overstated. The above guidance can help businesses promptly and legally manage their employees’ social media use, while limiting their liability, and minimizing the impact and cost of a workplace crisis.
Travis Pacheco is a Partner at the law firm of Jennings Haug Cunningham. He assists clients in the areas of employment law and general business litigation.
