Social media has become ingrained in mostly everyone’s daily life. What many people do not understand is that when they post on Facebook, send a Tweet, or comment on a photograph on Instagram, their online actions and persona can lead back to their employer and place of work. When does this become a problem for employers? When an employee calls attention to themselves and their employer through either inappropriate, racist, rude, or sexually abusive posts or comments online.
An employee’s unprofessional behavior online has the potential to wreak havoc and potentially go “viral,” leading to unwanted and possibly damaging press about your company. Many employers question whether they can police an employee’s online activities. The short answer is, “Yes. But…” Below are some of the common problems arising from an employee’s unprofessional online behavior and some tips to help employers manage their employee’s behavior on social media.
It’s one thing for a disgruntled customer to post a negative review about your company online. But once an employee posts something negative about your company on social media, that negative comment is out there for the world to see. Why is this worse than the negative review left by an unhappy customer? It is worse because a negative post from an employee certainly carries more weight than the disgruntled customer’s review since the employee has inside knowledge and insight into your company’s services, products and workplace culture.
When an employee badmouths your company, first you need to consider whether the negative comments made are protected by federal law, i.e., the National Labor Relations Act (NLRA), and other state laws that protect employees from retaliation for complaining about working conditions. Employees generally have the right to post information about their working conditions, wages and hours online. Section 7 of the NLRA protects employees’ activities if those activities are undertaken for the mutual protection or aid of other employees. This means that if an employee is engaging in a “group chat” on social media or posting information about topics such as working conditions, wages, workplace safety, or other employment terms and conditions, that online behavior is protected and employers may not discipline employees for that activity. Employers should also note that in most cases under Section 7 of the NLRA, employees have a legitimate and reasonable expectation of “limited” privacy. This means that if the employees take steps to protect their social media accounts from public viewing, it is likely that a court would uphold that privacy expectation. Since posts criticizing employers are a gray area legally speaking, it is important for employers to determine whether the employee’s posted content is protected by federal or state law before taking any action to discipline or fire the employee.
POSTING A RANT ON SOCIAL MEDIA
Since profiles on social media often contain an individual’s personal information, including their place of work, a person’s ‘rant’ on social media can easily be linked back to their employer and cause the employer to make a disciplinary decision on the spot.
Employers should note that Section 7 of the NLRA does not protect employees who have posted negative comments reflective of their employer’s business or brand, or towards their employer’s customers. Further, posts that contain threats of violence, hate speech, harassment, or violate your company’s confidentiality policy are not protected speech.
Depending on the content of an employee’s post, employers may decide to require the employee to participate in sensitivity training, or the employer may choose to fire the employee.
DISPUTES WITH COWORKERS
No workplace is perfect and there are always interpersonal disputes among employees. However, when a workplace dispute leaves the workplace and continues onto social media, a dispute can easily escalate into an all-out public war. Not only does the continued feuding on social media create an unpleasant and hostile work environment, it also gives the public access to your company’s dirty laundry. Further, it can lead to online bullying and harassment which may require employers to get involved in the dispute.
Often, employers can remedy these situations with mediation among the disputing parties. However, it is recommended that employers stop the issues before they start. How can employers do this? By setting forth a policy prohibiting employees from using social media or online posts to harass, threaten or bully colleagues in addition to prohibiting that same conduct in the workplace. Additionally, the policy should instruct employees on how to use social media ethically and how to respond to attacks on social media by less ethical users (i.e., don’t engage).
SOLUTIONS TO UNPROFESSIONAL ONLINE BEHAVIOR OF EMPLOYEES
Although we don’t have one simple fix for employees’ unprofessional online conduct, an employer’s first solution should be to create and distribute a comprehensive company policy on employee behavior on social media. This policy must clearly outline not only your company’s rules prohibiting online harassment and bullying, etc., but the policy should also set forth your company’s expectations of responsible social media usage while they are employed by your company. Be sure to include straight-forward examples of unacceptable online conduct and include the potential consequences that may arise out of an employee’s unprofessional behavior on social media.
Another solution for employers is to implement routine online searches of your company name to ensure your company’s name, brand and online reputation are not improperly tarnished by employees. Routine searches will allow employers to remain proactive and possibly get ahead of a comment or post that has the potential to go “viral” and negatively impact your company. However, there is one caveat to this solution. Employers should not target specific employees’ posts or “friend” employees on social media. “Friending” employees on social media is risky because it can lead to learning a lot of information about an employee that you’d probably rather not have access to and can blur the line between the employer-employee relationship. For example, after friending an employee you learn about that employee’s political views, social affiliations, medical issues, or religious preferences from their posts that you may have not previously known about. After learning that information from social media, at a later point you then give that an employee an unfavorable performance review or decide to pass on promoting that employee, an employer may run the risk of a potential discrimination or harassment claim. Similarly, you may become aware of off-duty conduct that affects the workplace and find you must now investigate that employee’s off-duty conduct.
Employers should also note that if an employer chooses to discipline an employee based on information learned from that employee’s social media, the ability to discipline the employee will depend on how you discovered that information. For example, if you learned of the employee’s post on social media because you had legitimate access to the employee’s post, i.e., the employee’s social media site is open for public viewing, you are “friends” with the employee on Facebook, or another employee who has legitimate access to the employee’s social media site brings it to your attention, you may then discipline the employee. If the employee has an expectation of privacy with respect to your viewing of their social media site (because their social media profile is set to private and you are not friends with that employee on that social media platform), or you ask other employees to check that employee’s social media site, then you will not be able to use that information to discipline the employee.
Unfortunately for employers, social media continues to evolve; and as it does, new and unique unprofessional situations will come about and need to be handled. While it is a continuous process for employers to amend their company policies, it pays for employers to be proactive when it comes to informing employees about unprofessional conduct on social media and teaching employees how to avoid it. If you have any questions about implementing a policy on social media, please feel free to contact one of our PMP HR Directors.