Every company is struggling with how—or if—to relate to social media. A recent white paper from national employment law firm Jackson Lewis points out some of the legal dangers in confronting employees over their use of social media.
When might you want to discipline over social media? There are a myriad of scenarios, Jackson Lewis says. For example, an employee:
- Engages in illegal Web-based activity while at work
- Spends the majority of his or her on-duty time surfing
- Criticizes a supervisor or client
- Posts distasteful photos or videos
- Calls in sick and then posts contrary information
Jackson Lewis’s real-life examples include:
- An Orlando sheriff’s deputy was fired after he posted comments about swimming nude, drinking heavily, female breasts, and other topics on MySpace.
- A California automobile club fired 27 employees who made objectionable comments on MySpace, including remarks about co-workers’ weight and sexual orientation.
- The Philadelphia Eagles fired an employee for posting a critical message about the team on his Facebook page. The employee wrote, “I am f—ing devastated about [Brian] Dawkins signing with Denver … Dam Eagles R Retarded!”
Before deciding to take an adverse employment action against an employee based on his or her social media use, Jackson Lewis recommends that employers consider the following possible legal constraints:
Could the employee be protected by the National Labor Relations Act?
The federal NLRA affords employees (even those who are not unionized) the right to engage in “concerted activity,” including the right to discuss the terms and conditions of their employment—and even to criticize their employers—with co-workers and outsiders.
Not all concerted activities are protected by the NLRA; only those activities that are engaged in for the purpose of collective bargaining or other mutual aid or protection are covered.
Could the employee be protected under a whistleblower statute?
Federal and state whistleblower laws may protect employees who complain about company conditions affecting public health and safety, as well as employees who report potential securities fraud violations.
For example, the Sarbanes-Oxley Act of 2002 prohibits employers from terminating employees for “providing information, causing information to be provided, or otherwise assist[ing] in an investigation regarding any conduct which the employee reasonably believes constitutes a violation of … any rule or regulation of the Securities and Exchange Commission, or any provision of federal law relating to fraud against shareholders.”
HR budget cuts? Let us help. HR.BLR.com® is your one-stop solution for all your HR compliance and training needs. Take a no-cost, no-obligation trial and get a complimentary copy of our special report Critical HR Recordkeeping—From Hiring to Termination. It’s yours, no matter what you decide.
Was the communication related to political activities or affiliations?
Many states, including California, prohibit employers from regulating employee political activities and affiliations or influencing employees’ political activities. Taking action against an employee for objectionable political speech could violate these restrictions.
Was the employee engaging in “legal off-duty activity” protected by state law or illegal activity?
Some states have “lawful conduct” laws that may protect an employee or applicant’s legal off-duty activities. For example, under California law, an employee is protected from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”
Thus, in some states, an employer may be prohibited from terminating an employee who, for example, posts pictures of himself intoxicated at a party (assuming the employee is over 21 years old). In contrast, the employer may have more leeway where the conduct is illegal (assuming the employee is under 21 in the example provided).
The law is far from clear in this area, and employers should consider each situation independently, Jackson Lewis suggests.
Find out what the buzz is all about. Take a no-cost look at HR.BLR.com, solve your top problem, and get a complimentary gift.
Does the employee have a potential discrimination claim?
When using social media to vet job candidates, an employer may inadvertently become aware of an applicant’s protected characteristics, such as race, age, sexual orientation, marital status, disability, and even genetic information protected under federal law. Some states also prohibit discrimination on account of sexual orientation, political affiliation, and off-duty conduct.
If the employer decides not to hire the applicant, he or she could sue the employer, alleging that the decision was discriminatory. This is the precise reason most employers stopped requiring applicants to submit certain information with their résumé or application; searching social networking sites may reveal such information and open the employer to the very risk it tried to avoid.
One practical option is to have someone who is not a decision maker at the company conduct the search in order to filter out protected information. This person can then provide the “scrubbed” information in document form to a decision maker for review.
In tomorrow’s Advisor, Jackson Lewis’s recommendations for a social media policy, and an introduction to a one-stop solution for all your HR compliance and training needs.