By Derek Ross, HR Consultant, East Coast Risk Management
With the current state of the union in regard to social justice, coupled with a worldwide pandemic, on top of it being an election year… these are very polarizing times in which we live in and employers need to be cautious when their employees voice personal beliefs or opinions on social media platforms.
Social media outlets are extremely popular for employees as a place to say whatever they like, whenever they like — with or without consequences looming. From a business standpoint, social media can be one of the most powerful marketing tools in your arsenal. To protect your business, you should establish a social media policy. A carefully written, clearly communicated, and consistently enforced social media policy will not only help you steer away from trouble, but it will help you navigate through a firestorm.
Here are a few steps to follow when creating a social media policy:
- First, employees need to know that they could be putting their jobs on the line if they post anything to social media, including pictures or videos of the workplace. If those postings are unlawful, include discriminatory or abusive language, are maliciously false or violate company policies such as Anti-Harassment or Confidential Information; they risk termination.
- You can also require that your employees make it clear in their social media activity that they are speaking on their own behalf and not on behalf of the Company and that any statements made about the Company or any other employees must be truthful and accurate.
- Supervisors need to be trained to proceed with caution when dealing with social media issues. If confronted with a public relations nightmare created by an employee using social media, make sure the company’s response is appropriate. Organizations may be ordered to provide back pay and reinstatement, if it is determined that the employee was wrongfully terminated. It is best to check with an HR professional to assess whether a specific posting is protected by law.
Remember that the National Labor Relations Board (NLRB) is very particular about these policies. Avoid any language that could be interpreted as an attempt to limit an employee’s protected right to “concerted activity.” In other words, avoid broad language that is too restrictive. It also helps to include a disclaimer stating that the policy is not intended to restrict communications or actions protected or required by state or federal law.
Be extremely careful when you consider firing an employee over social media post. Courts have found that social media violations constituted a legitimate, non-discriminatory reason for firing an employee. Past decisions by the NLRB hold employers liable for terminating employees related to social media, if the actions are related to protected concerted activity under the National Labor Relations Act. The NLRB has made a point of protecting employees who discuss their working conditions, complaints, and terms of their employment with other employees through social media. So, before you consider disciplinary action or termination of an employee for a social media posting you may want to check with your legal counsel regarding the following concerns:
- Did the employee make complaints or threats against customers?
- Was there harassing speech against a co-worker?
- Was confidential information discussed or information about the company or client relationships or other information that may harm the company’s reputation in the marketplace?
One more caveat regarding social media…
Employers who use social media in the hiring process decision makers must be aware of the risk involved. Federal and state laws generally prohibit discriminatory hiring decisions based on protected categories such as race, color, religion, and sex. The danger of conducting background checks of applicants using social media sites such as Twitter, Instagram and/or Facebook is that you may discover the applicant belongs to a protected category—information you probably wouldn’t learn through your general application process.
Be sure you review all the risks and rewards associated with your social media policy and procedures. Then make sure that all your employees are aware of the policy.
If you are an employer that has questions about managing your social media policy or on any issue relating to human resources, safety, or workers’ compensation, contact East Coast Risk Management by calling 724-864-8745 or emailing us at hrhelpline@eastcoastrm.com.
Disclaimer: The information provided on this web site is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this web site does not create an attorney-client relationship between East Coast Risk Management or our employment attorney and the user or browser.
