by Brett Strauss, Esq. & Director of ComplianceWhat if your organization has an employee who is posting harmful or defamatory information on a social channel? What do you do?
Federal law prevents employers from discriminating against employees because of their personal social media. While employers may use social platforms as informal background checks, particularly on potential employees, there are many aspects of addressing social media concerns that should be taken into consideration on any employment, disciplinary or termination action.
In California, which is an at-will employment state, California Labor Code 2922 states that at-will employees “may be terminated at the will of either party on notice to the other.” In short, employers can fire employees for anything, including their social media posts.
However, business owners and managers should proceed with caution because enforcement of disciplinary actions or termination based on social media posts are not easily addressed.
First and foremost, your organization should have a social media policy. The policy should address no tolerance for sharing proprietary information, client information, grievances or any photo or language that may be considered defamatory to the organization, its image and reputation, its employees, partners and clients. The policy should detail what type of enforcement action will be taken, up to and including termination and possible legal ramifications of any posts that may cause harm to the business and employees, may be related to a sexual harassment claim, or depicts any illegal activities. The policy should also address expectations for post-employment in regards to confidentiality and proprietary information.
Examples of harmful and actionable social postings by an employee may include:
- Defamation of the organization, whether by picture or copy, in which proprietary or confidential images are published. There have been cases where employees have been terminated for disclosing client information such as announcing, “I just landed ABC Company as a new client.”
- Lewd, graphic or inappropriate content. Common cases include employees posting racy images, offensive opinions, and posts that show illegal activity such as drug use, destruction of property, theft or vandalism.
- Commentary about hating the job, coworkers or management as well as posts that demonstrate that the employee has lied, made harmful threats or is harassment in nature.
- Excessive posting during working hours. An employer may notice the dates and times of posts that are routinely occurring while the employee is working.
Employees and managers alike are wise to consider their social media posting, behaviors and content. Ask, “Is this something I would be comfortable with my employer or my employees seeing?”
The employee-supervisor connection is also a risk issue to be considered. In cases where a supervisor has, for example, “friend” connections on social media with their employees, the content posted and shared has the possibility of risk. For example, the supervisor posts a picture (or is even “tagged” in someone else’s post) that the employee(s) deem inappropriate (for and reason; political, religious, sexual orientation etc.) could lead to workplace issues such as loss of respect, deterioration in the employment relationship, retaliation and reputation risk (just to name a few), that could lead to disciplinary action up to and including the supervisor’s termination. Supervisors are wise to keep professional connections with employees on sites such as LinkedIn rather than personal platforms.
The legal risk to employers who seek disciplinary actions against an employee on the basis of social media is significant if not executed properly. Section 7 of the National Labor Relations Board (NLRB) protects an employee’s right to engage in concerted activities with other employees for the purpose of mutual aid and protection. The protection extends to both union and non-union employees. As such, employers should recognize that their social media policy must be continually reviewed, updated, and part of an annual policy renewal that is acknowledged in writing, signed by employees and added to their employment file. The policy must comply with local, state and federal laws. Changes to the policy should also be clearly highlighted so that employees understand any language that has been changed, added or removed.
As with any human resources issue, documentation is essential. Before proceeding with a disciplinary action or termination based on social media, business owners are wise to engage a review by a human resources professional and/or legal counsel to ensure the basis for such action is legal.
If your business is considering implementing a social media policy, Contact Us for a complimentary 15 minute meeting with one of our HR experts. Our HR Service plans can help your business implement and manage your workplace and workforce.
For the latest updates, follow us on LinkedIn, Facebook, Twitter, YouTube, Instagram and TikTok for even more business tips and news.
*Southland Data Processing, Inc. (“SDP”) is not a law firm. This article is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other SDP materials does not create an attorney-client relationship. SDP is not responsible for any inadvertent errors that may occur in the publishing process.
by Brett Strauss, Esq. & Director of ComplianceWhat if your organization has an employee who is posting harmful or defamatory information on a social channel? What do you do?
Federal law prevents employers from discriminating against employees because of their personal social media. While employers may use social platforms as informal background checks, particularly on potential employees, there are many aspects of addressing social media concerns that should be taken into consideration on any employment, disciplinary or termination action.
In California, which is an at-will employment state, California Labor Code 2922 states that at-will employees “may be terminated at the will of either party on notice to the other.” In short, employers can fire employees for anything, including their social media posts.
However, business owners and managers should proceed with caution because enforcement of disciplinary actions or termination based on social media posts are not easily addressed.
First and foremost, your organization should have a social media policy. The policy should address no tolerance for sharing proprietary information, client information, grievances or any photo or language that may be considered defamatory to the organization, its image and reputation, its employees, partners and clients. The policy should detail what type of enforcement action will be taken, up to and including termination and possible legal ramifications of any posts that may cause harm to the business and employees, may be related to a sexual harassment claim, or depicts any illegal activities. The policy should also address expectations for post-employment in regards to confidentiality and proprietary information.
Examples of harmful and actionable social postings by an employee may include:
- Defamation of the organization, whether by picture or copy, in which proprietary or confidential images are published. There have been cases where employees have been terminated for disclosing client information such as announcing, “I just landed ABC Company as a new client.”
- Lewd, graphic or inappropriate content. Common cases include employees posting racy images, offensive opinions, and posts that show illegal activity such as drug use, destruction of property, theft or vandalism.
- Commentary about hating the job, coworkers or management as well as posts that demonstrate that the employee has lied, made harmful threats or is harassment in nature.
- Excessive posting during working hours. An employer may notice the dates and times of posts that are routinely occurring while the employee is working.
Employees and managers alike are wise to consider their social media posting, behaviors and content. Ask, “Is this something I would be comfortable with my employer or my employees seeing?”
The employee-supervisor connection is also a risk issue to be considered. In cases where a supervisor has, for example, “friend” connections on social media with their employees, the content posted and shared has the possibility of risk. For example, the supervisor posts a picture (or is even “tagged” in someone else’s post) that the employee(s) deem inappropriate (for and reason; political, religious, sexual orientation etc.) could lead to workplace issues such as loss of respect, deterioration in the employment relationship, retaliation and reputation risk (just to name a few), that could lead to disciplinary action up to and including the supervisor’s termination. Supervisors are wise to keep professional connections with employees on sites such as LinkedIn rather than personal platforms.
The legal risk to employers who seek disciplinary actions against an employee on the basis of social media is significant if not executed properly. Section 7 of the National Labor Relations Board (NLRB) protects an employee’s right to engage in concerted activities with other employees for the purpose of mutual aid and protection. The protection extends to both union and non-union employees. As such, employers should recognize that their social media policy must be continually reviewed, updated, and part of an annual policy renewal that is acknowledged in writing, signed by employees and added to their employment file. The policy must comply with local, state and federal laws. Changes to the policy should also be clearly highlighted so that employees understand any language that has been changed, added or removed.
As with any human resources issue, documentation is essential. Before proceeding with a disciplinary action or termination based on social media, business owners are wise to engage a review by a human resources professional and/or legal counsel to ensure the basis for such action is legal.
If your business is considering implementing a social media policy, Contact Us for a complimentary 15 minute meeting with one of our HR experts. Our HR Service plans can help your business implement and manage your workplace and workforce.
For the latest updates, follow us on LinkedIn, Facebook, Twitter, YouTube, Instagram and TikTok for even more business tips and news.
*Southland Data Processing, Inc. (“SDP”) is not a law firm. This article is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other SDP materials does not create an attorney-client relationship. SDP is not responsible for any inadvertent errors that may occur in the publishing process.