Notwithstanding that the people involved are often surprised at their public exposure, it has become somewhat commonplace for individuals to be either caught on video by a smartphone or to have a social media website posting that demonstrates poor judgment go viral. All employers should consider having a social media response plan for just these sorts of incidents, in some cases to protect other employees and in many cases to protect the employer’s brand and reputation. Even then, employers must strike a fine balance in navigating their rights and responsibilities towards all affected by the sudden exposure.
Try not to look.
Many social media posts of applicants and employees are never seen by employers, of course, and employers have good reason to avoid scrutinizing the social media lives of applicants and employees. State legislatures have passed and continued to propose bills that block or place restrictions on how employers may use social media to vet prospective employees for past poor judgment or bad behavior on social media. Employers are prohibited from requiring, and in some cases from requesting, a prospective employee’s social media username and password, and even searches of applicants’ publicly viewable social media presence can open a Pandora’s box of potential legal issues. Employers who learn of applicants’ disabilities, pregnancies or legally protected behaviors of which the employer may disapprove can face discrimination suits if they rely on that information in making adverse employment decisions. In addition, because applicants may have widely varying approaches to documenting the minutiae of their lives on social media (including in photographs and with posts about personal views), searches of applicants’ personal social media presence necessarily result in employers gathering inconsistent levels of information about applicants–with some of the information potentially inaccurate or unreliable.
If you do look, proceed carefully.
On the other hand, even if employers do not search out the social media posts of their employees, employers cannot always turn a blind eye to the social media conduct of employees once they are hired, especially if the employees post information that is damaging to the company or harassing of other employees. Employers must stay mindful of National Labor Relations Act (NLRA) protections for non-supervisory employees to engage in discussions critical of management for collective purposes, but many offensive social media posts are not legally protected and have a direct impact on the workplace.
And, regardless, be prepared.
Best practices employers might want to consider in their efforts to prepare for a social media incident include:
- Communicating their social media policy regarding personal and work-related social media use to all of their employees, and as part of their onboarding of new employees, and educating employees on how to report social media misconduct and the consequences of such misconduct.
- The National Labor Relations Board has cautioned that an employer’s policies “should not be so sweeping that [it] prohibits the kinds of activity protected by the federal labor law, such as the discussion of wages or working conditions among employees.”
- Identifying a response team, which in most cases should include both a human resources representative and often either in-house or outside counsel, given the many overlapping legal issues that may be in play.
- Developing a protocol for how social media misconduct can be reported to the Response Team (e.g., an email address, hotline, etc.).
- Developing a protocol for investigating and documenting any reports of social media misconduct.
- Being prepared to quickly determine if the person who allegedly engaged in the social media misconduct is subject to any protections or might attempt to argue that the reason for firing was a proxy for some other prohibited reason.
- Being prepared to communicate to the affected employee the results of the investigation and the consequences of the employee’s social media misconduct.
- Considering the pros and cons of posting a social media response on a case-by-case basis and, if a decision is made to post a response, identifying:
- The spokesperson for any response.
- The social media platforms, and potentially other platforms (e.g., the employer’s website), to be used for the response.
- The approach for any employer response to different types of social media misconduct (e.g., the American Red Cross issued a good-humored tweet which acknowledged an employee’s tweet mistake–“We’ve deleted the rogue tweet but rest assured the Red Cross is sober and we’ve confiscated the keys.”).
- The review and approval process for a response.
- Taking care that any public responses about a terminated employee or social media incident doesn’t open the company up to defamation or retaliation claims, or NLRA unfair labor practices charges.
Additional Source: People, Marketing Exec Fired Due to Racist Facebook Post About Coworker’s Son; The Guardian, Wrestler Hulk Hogan fired over race outburst caught on tape; The Huffington Post, Maryland Prisons Official Fired For Facebook Joke About Being Groped; Employ Me, Don’t Friend Me: Privacy in the Age of Facebook; National Conference of State Legislatures, Access to Social Media Usernames and Passwords; Mashable, Red Cross Does PR Disaster Recovery on Rogue Tweet; The NLRB and Social Media