Labor/Employment Law

Off Duty Social Media Conduct: When Can an Employer Lawfully Take Action?

By Luther Wright, Jr.

There are more than 400 social media sites throughout the world! Current estimates are that 70% of the United States’ population has some type of social media account, with an expected rise to 94.4% of the population by 2026. By 2023, Facebook alone will have an estimated 223.2 million users in the United States. These numbers and trends should lead you to the inescapable conclusion that nearly every employee that works for your organization has a social media account. This conclusion also means that one of more or your employees has likely engaged in or will engage in social media activity that you will have to address in the workplace.

Caselaw and statutes regarding the use of social media in employment decisions are evolving.While it is usually our first thought to fire an employee for what appears to be inappropriate or unacceptable conduct, there are a myriad of factors that must be considered before making this decision. Some of these considerations, such as whether a termination might raise claims of discrimination or retaliation, are obvious. Others, such as whether the social media activity is protected concerted activity and therefore permitted by the National Labor Relations Act (“NLRA”), are less well known and much less clear. All types of employers (large, small, public, private, etc.) must consider how their employees use social media — both company accounts and personal accounts — and develop policies and procedures to provide guidance to supervisors and managers on how to best handle social media related conduct, especially when the employee is off duty.

REGULATING EMPLOYEE OFF-DUTY SOCIAL MEDIAL POSTS

Navigating issues surrounding employees’ social media posts can be a difficult task. Employers must consider the impact of federal, state and local discrimination laws when considering whether to and/or how to react to social media postings. This includes being mindful that sometimes statements or posts that may appear to an employer to be inappropriate, offensive, inaccurate, crass or derogatory may actually be protected under applicable federal, state or local laws that expressly allow the specific activity. Employers must also realize that social media platforms are just “other places” where employees sometimes act inappropriately. In other words, the same expectations of professionalism that apply to conduct in physical locations—breakrooms, parking lots, conferences, restaurants—also apply to conduct on social media.

Organizational “Must Haves” to Regulate Social Media Activity

The first step to having a robust process for dealing with off-duty social media conduct is making sure that there are clear, widely disseminated policies and protocols in place for addressing all social media issues when they arise. The policy must first address issues related to the use of organizational devices, equipment and accounts and also discuss how off-duty social media activity will be addressed. This effort requires a thoughtful crafting and training process that should include the following:

Preparation and dissemination of a written policy that covers all of the company’s technologies (computer and data systems, e-mail, internet usage, social media account usage, company issued phones and laptops and tablets) and disciplinary consequences for misusage;
A clear declaration that the company retains ownership of all hardware and software (or software licenses) and that company equipment and accounts should not be used for personal endeavors;
A clear reservation of the right to monitor or review all electronic communications that relate to the organization, including those made privately that are brought to the attention of the organization by other employees or third parties;
A declaration that nothing in the social media policy is designed to diminish or interfere with employee rights under the NLRA or any federal, state or local laws that govern employee rights.
Periodic training on the organization’s social media policy and practices.

A well drafted policy and training effort will make social media incidents much easier to manage. Clear guidelines will often prevent employees from engaging in behavior that will result in termination in the first instance. The guidelines also serve as protection from legal liability as it tends to deter discrimination claims

A Rubric for Thinking Through Discipline for Social Media Activity

Once a good policy is in place, the organization has a framework to address individual issues when they occur. The initial issue that frequently arises in these instances is whether an employee has any claim to invasion of privacy because they consider their postings “private.” Generally, an employer’s polices and conduct will control the extent to which an employee might be able to establish that they have an expectation of privacy that might, for example, prohibit a search of a work computer or prevent consideration of a post made from a private computer. Absent some effort on the part of the employer to hack into the private portion of a social media site, however, employees are not likely to prevail on a claim that they had a reasonable expectation of privacy as to anything posted for public view on a web site.

There are six critical issues to think through when considering disciplinary action for an employee’s social media activity:

The comment’s content

Is the comment made while performing job duties and related to job duties, is it about matters of public concern, employer concerns or purely personal? While employers can regulate all of these types of speech or conduct to some extent, the thought process is different for each one, with “purely personal’ content receiving the least amount of protection. Employers must remember that criticism of the company and supervisors (or even customers), even if crass, may constitute protected activity under the NLRA and cannot be the basis of discipline. Public employers are required to provide more protection for “public concern” speech and private employers are well advised to use the same standards in this area.

Source(s) of information

If the organization learned of the social media activity by subterfuge (i.e. fake account, hidden identity, etc.) or from unreliable sources, then the resulting disciplinary action might be compromised and lead to potential liability. An investigation that gives the employee a chance to respond to and resolve these issues is critical to having a better outcome.

Which policies may be implicated

The social media activity should be viewed against applicable workplace policies like anti-harassment, code of conduct, anti-violence or social media use policies. It is helpful to remember that discriminatory rhetoric or expressions of violence enjoy no legal protections (as noted above) and that comments/activity may violate more than one workplace policy. Tying the social media activity to a policy violation provides an extra source of liability protection.

Potential effects on employee morale

If the social media activity negatively impacts employee relationships or the work environment, the impact itself may be an independent reason for discipline. Significant disharmony in the workplace or an inability to effectively perform one’s job because of social media activity are legitimate disciplinary considerations.

Potential public relations implications

Social media activity that spreads falsehoods, misrepresents facts about the organization or portrays the organization in a false light enjoy no legal protections and employees can be disciplined for this type of activity.

Potential liability

For the post itself
For the disciplinary action

Employers should consider whether their policies have been consistently enforced, especially when making termination decisions. Employers should also consider whether there is any potential liability for not taking action, such as harassment claims or claims from third parties. In this area, the most common claims filed by employees are 1) discrimination; 2) retaliation; 3) negligent hiring/negligent supervision; and 4) invasion of privacy. Termination decisions should be vetted for the potential for any of these claims before being executed.

CONCLUSION

Employers are well advised to be very careful about pursuing discipline and discharges based on off duty social media activity. At the very least, employers should always remember to:

Review their policies to be sure that they provide the needed protections while not being so broad as to prohibit protected or legal activity;
Be sure that they understand how local laws might place limitations on the things for which they can discipline or discharge employee, especially if a multi-state employer;
Not obtain information through subterfuge or other improper manners; and
Not assume that things that are rude, offensive, or critical of the company, supervisors or customers provide solid grounds for termination as the NLRA protects a good deal of speech in this arena.

Following the recommendations mentioned above and remembering these few simple concepts can help your organization avoid unnecessary confusion and liability in the social media arena.