Perhaps more than ever, employers are struggling with whether and how to address their employees’ social media posts on political and social issues. One reason for the increased attention to this issue is that employers are now commonly receiving complaints from the general public about their employees’ social media activity. Employers are now faced with the resulting public relations issues from such complaints.
With respect to employees of public employers, such as federal and state agencies or entities, there may be free speech or First Amendment protections at issue. However, for private employers, those protections do not exist, even though employees often believe that they have a right to post whatever they choose on their own time and through their personal electronic devices.
In light of this, private employers should develop a plan on what personal media posts they will address and how they will address them. That process begins with identifying some general objectives, including enforcing the company’s stated values or culture, addressing any objectionable public states that impact the company’s reputation or goodwill in the community, showing sensitivity to the need of employees to express opinions and to be heard about important social issues that impact their lives and supporting the company’s commitments to diversity, equality and inclusion.
Next, an employer needs to provide fair warning to its employees as to what types of social activity may put employees in hot water. This may occur through policy reviews or even just email reminders that their personal social media posts may be addressed in certain circumstances. Employers should spend more time in trying to prevent the objectionable conduct from occurring than deciding how it will react to it when it occurs.
When reacting to a possible objectionable social media post, an employer must keep in mind any legal implications associated with addressing personal media posts. One question to ask is whether there are any laws that provide protection to the social media post, such as the National Labor Relations Act, which may prevent an employer from addressing posts that involve concerted activity about the terms and conditions of employment. While such posts may impact the employer’s reputation, they may not be lawfully addressed.
Other factors employers should consider are whether any of the company’s policies have been violated by the social media post, such as a code of conduct, an anti-discrimination policy or a policy that governs the use of electronic communications. If the conduct squarely violates a policy, then the employer may treat the social media post the same as any other type of violation of the applicable policy. Most of the time, it’s not that simple, though.
In determining whether the social media post is contrary to the company’s other legitimate objectives, here are some questions to ask:
- Have the company’s electronic systems been used in any way? Has the employee used a company phone, laptop or company internet access when making an objectionable post?
- Did the conduct occur on company time while the employee should have been working? This is often tricky to determine as posts may be scheduled to be released at a specified time by the employee.
- Does the conduct impact the company’s reputation and goodwill within the communities in which it serves?
- Has the employee linked his or her post to the company, either through social media profiles that identify the employee as employed by the company or through pictures where the employer’s logos may appear? Even in the absence of something that clearly identifies the individual as an employee of an employer, often it only takes a simple search on the internet to identify where someone works.
- Does the post irreparably affect the employee’s ability to lead or work cooperatively with others?
- Are there any employee relations issues (how employees will feel by having their personal social media posts addressed) that need to be considered?
- Are there any significant public relations issues (how will the public view the employer if it is not addressed) that need to be considered?
Once an employer determines that it legally may address and should address the social media post, the level of action, such as discipline or even termination of employment, has to be considered. Generally, these factors are key: the level of or severity of the objectionable post, the position of the employee (such as whether they hold a managerial position where the employee is held to a higher standard), any previous discipline to consider and whether the proposed action is consistent with how other social media issues have been addressed.
These issues are never easy, especially in these times of divergent opinions on political and social issues. However, careful communications to employees, planning and thoughtful reactions will allow employers to traverse the difficult landscape.
Doug Kauffman, a partner in Birmingham-based Balch & Bingham LLP, specializes in labor and employment law.
