Social media incidents are a rising workplace issue; many users simply aren’t aware of the implications of posting something online and many employers don’t understand just how far their authority over employees’ social media use extends. You may have heard about the recent resignation of GOP staffer, Elizabeth Lauten, over her disparaging Facebook post concerning President Obama’s daughters. Her inappropriate use of social media is a reflection of the growing number of cases just like this one. As an employer, it’s in your best interest to stay up-to-date on current legislation surrounding social media, to educate employees on what your organization expects of them, and to make them aware of how their online actions can have real-life consequences, not just for them, but for the organization as well.
What Social Media Content Can an Employer Control?
Under the National Labor Relations Act (NLRA), employees are free to discuss working conditions and their own employment related terms with those both inside and outside their organization. In these cases, an employer is not permitted (ie. an employee is “protected”) to terminate any employment action against the employee for engaging in the protected activity.
Some examples of protected content include discussions about:
- The employee’s own wages and benefits
- Complaints or criticisms about management
- Labor disputes
- Working conditions
- Safety concerns
- Certain situations of harassment in the workplace
For instance, if two co-workers have a Facebook discussion about how they feel discriminated against in the workplace, it’s protected under the NLRA. If an individual tweets about her negative feelings towards her boss in an attempt to engage others in a discussion, that is also protected—the employer cannot terminate the employee or take any type of job action against the employee (but they can ask to discuss the issue).
When Do Employers Have the Right to Take Action?
Not all content is protected; individuals cannot post whatever they want to their social media accounts and expect no consequences. For instance, if their individual gripes are reckless or malicious or they involve defamatory content, then an employer may have cause to take action—as illustrated by the termination of a former PayPal executive after a series of tweets he sent out denigrating both his colleagues and the company. Also, if an employee makes a complaint about the customers of the establishment they work at, or they make other types of comments that do not align with company values and morals, then the employer may have the right to terminate or engage in some other disciplinary action—as was a recent case for a waitress fired over complaining about her customer’s tipping practices.
Private and public accounts are a gray area of social media—if a person is connected with co-workers or managers, what he/she posts may have consequences. The District Court of New Jersey recently ruled in favor of an employer’s decision to terminate an employee over what was assumed to be private Facebook posts that were brought to the employer’s attention by a co-worker who had printed off screenshots of the comments. Conversely, in 2012 the National Labor Relations Board (NLRB) ordered the reinstatement of 5 social workers over private Facebook posts made about one of their coworkers that were shown to the executive director. The takeaway here is that it matters little whether something is posted to a public account or what is thought to be a private account; what takes precedent is whether the type of content falls under the NLRA’s umbrella of “protected activity”.
Two Ways to Avoid Social Media Incidents in the Workplace
Before you have to resolve a wrongful termination lawsuit, set a clear standard within your company for acceptable social media use and define which disciplinary actions will result if staff fails to meet that standard. Making employees aware of this information is a proactive way to ensure that these issues don’t occur in the first place. There are two primary actions employers can take to mitigate the risks:
- Create a social media policy. It’s a smart idea to have a documented social media policy that HR clearly communicates to employees. When employees are aware of what is expected with their social media use, they are less likely to engage in inappropriate activity. However, it should be noted that simply having a social media policy isn’t enough to protect an employer or permit them to take action; the policy must reflect all current laws.
- Require employees to use disclaimers. If an employee’s social media account identifies their employer, then it may be acceptable to ask that they include the disclaimer that the views expressed are theirs alone and do not reflect those of the company.
The use of social media in the workplace is a relatively new practice, and the regulations that govern this use are constantly evolving to protect both employers and employees. Avoid the numerous difficulties of a social media scandal, from bad press to termination lawsuits: remain as up-to-date as possible on current regulations surrounding social media in the workplace and educate employees about the details of the organization’s social media policy to prevent these issues from occurring in the first place.
