With approximately 3.6 billon people expressing themselves on social media platforms such as Facebook, Twitter, LinkedIn, YouTube, Instagram, and TikTok, employers have to ask themselves some important questions. For example, should you set boundaries for what you will or won’t accept in employees’ online posting activities? Can you legally fire them for posting something on their personal social media accounts?
‘We Are Deeply Troubled’
ViacomCBS came face-to-face with an employee social media hurdle in July when the company cut ties with Nick Cannon after he made what the company called “hate speech,” including anti-Semitic theories, during a YouTube podcast not associated with the firm. Shortly after the podcast, the employer issued the following statement:
ViacomCBS condemns bigotry of any kind and we categorically denounce all forms of anti-Semitism. We have spoken with Nick Cannon about . . . his podcast . . . which promoted hateful speech and spread anti-Semitic conspiracy theories. While we support ongoing education and dialogue in the fight against bigotry, we are deeply troubled that Nick has failed to acknowledge or apologize for perpetuating anti-Semitism, and we are terminating our relationship with him.
Deloitte, a Big Four accounting firm, recently faced a similar situation. The employer pulled a two-week summer internship offer made to Claira Janover, a Harvard graduate, after she posted an explicitly racist and threatening TikTok video, which went viral. The company stated:
Deloitte unequivocally stands against the legacy of systemic bias, racism, and unequal treatment that continues to plague our communities. We encourage and support our colleagues to speak out on these issues of critical importance to society, but our policies strictly prohibit invoking or threatening violence.
You may recall the story of Justine Sacco, a 30-year-old senior director of corporate communications with IAC, who sent a racially offensive tweet before an international flight. When she turned on her phone after the flight, she found she was the No. 1 worldwide trend on Twitter as people were outraged by her offensive comment. She was terminated shortly after she landed. The employer issued a statement during the time she was unreachable:
This is an outrageous, offensive comment that does not reflect the views and values of IAC. Unfortunately, the employee in question is unreachable on an international flight, but this is a very serious matter and we are taking appropriate action.
Employees clearly have a right to online freedom of speech. In Florida, however, you can terminate an employee with or without cause, so long as the reason isn’t discriminatory.
Generally, you shouldn’t tolerate an employee’s postings that are egregiously offensive, discriminatory, violent, illegal, deliberately false, or ridiculing of your company, products, or services. You also generally shouldn’t tolerate their social media activities that compromise or threaten your legitimate business interests. You can and should assess an employee’s social media activity as it relates to your set policies and the risk to your business and reputation.
Having a separate social media policy can be especially important. Your policy should advise employees they’re responsible for their postings and that they also must:
- Use good judgment;
- Be professional;
- Stay accurate and honest;
- Be responsible and respectful;
- Refrain from engaging in inappropriate or unacceptable conduct, including obscene, harassing, discriminatory, bigoted, pornographic, and/or hateful behavior;
- Avoid divulging your confidential, financial, and trade secret information;
- Steer clear of representing themselves as a spokesperson for your organization; and
- Refrain from using social media at work.
Employees have a right to engage in certain protected activities without an employer retaliating against them. The National Labor Relations Board (NLRB) says your social media policy shouldn’t be so sweeping that it prohibits the kinds of activity protected by federal labor laws, such as employees’ discussions about wages or working conditions.
In other words, employees are generally permitted to discuss work-related issues, criticize their employer, and share information about pay, benefits, and working conditions while communicating with coworkers on social media.
With so many employees using social media, now may be a good time to review or implement a company policy. Be sure the policy provides you with the protection needed to enforce your current rules, including antiharassment, antidiscrimination, antiviolence, and trade secret protections. Don’t unlawfully prohibit employees, however, from engaging in protected activities and freedom of speech. A good policy should let employees know they’ll be held accountable for posts falling outside of the company’s values and policies up to and including termination.
Eric K. Gabrielle is an attorney with Stearns Weaver Miller Weissler Alhadeff and Sitterson, P.A., in Fort Lauderdale, Florida. You can reach him at email@example.com. Also contributing to the report was Lynn Derenthal, a paralegal in the same office.