In this digital age, personal and business reputations can be significantly harmed (or destroyed) with nothing more than a few keystrokes. By the time a company becomes aware of a negative social media post, it can be a race against the clock to respond appropriately before such negative publicity goes viral. But what can an employer do if they discover their own employee was the source of the detrimental social media post?
Social media posts often implicate certain statutory employee rights that may control over standard workplace performance or misconduct policies. Not only do most social media posts occur when employees are off duty, away from the workplace, and involve communications with third-parties, but the content of off-duty social media posts may constitute “protected converted activities” under the National Labor Relations Act (NLRA), which applies to unionized and non-union workplaces alike. Employers who discipline employees for comments on social media that constitute protected concerted activities risk committing an unfair labor practice and violating the employee's Section 7 rights under the NLRA.
The standard for appropriate discipline for employee social media posts is also somewhat of a moving target based on changes in political administrations, as the National Labor Relations Board (NLRB) – the federal agency that administers the NLRA by investigating, prosecuting, and adjudicating NLRA claims – is made up of five members appointed by the President to five-year terms. While the NLRB aspires to be an independent agency, there is arguably no other area of law that changes so significantly with republican or democratic appointments and resulting majorities on the NLRB. Informed and risk averse employers should consult with employment and labor law attorneys to properly assess risks based on the legal philosophies of the current NLRB appointees.
In addition to considering whether social media posts are protected under the NLRA, employers should also evaluate the following:
- Whether the company has a valid and enforceable social media policy;
- Whether the conduct violates any other enforceable employer policies, such as discrimination based on protected classes, harassment based on protected classes, threatening or intimidating conduct, vulgar or obscene content, or disclosure of trade secret or protected confidential information of the company;
- Whether the comment is merely offensive or fair criticism, or whether the comment causes calculable economic harm to the employer;
- Whether other employees previously engaged in similar social media conduct in the past and how the employer addressed each prior instance; if there are any variances in the employer's responses, ensure there are good reasons for the differences and be prepared to identify legitimate business reasons for the different treatment;
- Review state-specific lawful off-duty conduct laws;
- Consider options for disciplinary measures and/or requesting that the employee remove the social media post; and
- Assess the risks of litigation.
Farhang & Medcoff attorneys work closely with employers to draft comprehensive, compliant, and enforceable social media policies, handbooks and other employment policies to ensure the employer is in the best legal position to defend against any necessary employee disciplinary action.